Opinion
No. 33008.
January 24, 1938.
VENUE.
Evidence that defendant, who conducted mercantile business in storehouse erected on land purchased in Madison county, never intended to make his home there but bought land for his daughter and son-in-law and conducted business for their benefit, and that defendant had a home and farm in Leake county, had livestock, personalty, and household goods there, retained his citizenship and voted in Leake county, and spent some of his weekends there, established that defendant's residence was in Leake county, and hence neither justice court nor circuit court of Madison county had jurisdiction of suit against defendant.
APPEAL from the circuit court of Madison county. HON. J.P. ALEXANDER, Judge.
H.B. Greaves, of Canton, and Jack M. Greaves, of Madison, for appellant.
The testimony shows the defendant had a store and filling station in Madison County in District 3, where he resided with his wife and family (and where the horse was injured) at and for some time prior to the filing of this suit and conducted a store and filling station and farmed.
Section 2072, Code 1930, a rescript of Section 2223, of Hemingway's Code and of Section 2724, Code 1906, fixes jurisdiction in cases in justice court where the defendant is a "freeholder or a householder" in the district, where the liability incurred, etc.
Nelson v. State, 57 Miss. 287; Buckley v. Porter, 160 Miss. 99.
In the instant case, the appellee resided with his wife and children in District No. 3, Madison County. He took out license in his name to do business for the year and was actually operating a store, soft drink stand and filling station, and farming.
Appellee might have kept his citizenship in Leake County and returned to vote there (of which there is no evidence in this record), still he was a householder in District No. 3 at the time this suit was brought, for some time before suit was brought and after the liability was incurred and at the time of trial in lower court, and still is.
Buckley v. Porter, 160 Miss. 98; More v. Sykes' Estate, 167 Miss. 218.
White McCool, of Canton, for appellee.
Section 2072, Code of 1930, reads in part as follows: "The jurisdiction of every justice of the peace shall be coextensive with his county, and he may issue any process in matters within his jurisdiction, to be executed in any part of his county; but every freeholder or householder of the county shall be sued in the district in which he resides, if there be a justice acting therein and qualified to try the suit, or in the district in which the debt was contracted, the liability incurred, or in which the property may be found . . ."
Cain v. Simpson, 53 Miss. 521; Gibson Paving Co. v. Mills, 95 Miss. 726, 49 So. 568; Buckley v. Porter, 160 Miss. 99.
Appellee has always had a settled abode in Leake County and has never established a household elsewhere.
"Animus revertendi" has no bearing in this case. Appellee never was a "freeholder" or "householder" of Madison County; and, thus, could have no intention of returning to Leake, as he had never had any intention of abandoning his household in Leake County.
Appellant is not without his remedy. Let him pursue his cause of action, if he so desires, in the proper district of Leake County, the proper forum.
Brown v. State, 57 Miss. 433.
T.P. Hoy, plaintiff in the court below, brought suit against H.M. Scrivener in district No. 3 of Madison county, Miss., for $150. Judgment was rendered for the plaintiff in the justice court, and appeal was taken to the circuit court, where the cause was tried anew on plea to the jurisdiction of the justice of the peace of that district of the county. The plea alleged that Scrivener, at the time the cause of action accrued, was not a resident citizen or householder of Madison county, and is not now, but was then, and now is, a resident of Leake county, his presence in Madison county being temporary; and that as the cause was in the circuit court on appeal from the justice court, it should be dismissed for lack of jurisdiction in that court, the circuit court being likewise without jurisdiction to hear and determine the cause of action.
From the proof introduced in support of this plea it appeared that the defendant had a home and farm in Leake county, Miss., where his household goods remained, where he also had livestock and personal property of that kind; that he retained his citizenship in Leake county, voted there, and spent his week-ends, or a portion of them, there; but that he had bought land in district No. 3 of Madison county, erected a storehouse thereon, and was conducting a mercantile business therein; that he and his wife had moved a bed and some other personal property to this place; that he also had a small sawmill in Attala county, and had engaged in business to a limited degree in Louisiana prior to the accruing of the cause of action in this case; that he had never intended to make his home in Madison county, but in fact had bought this property for his daughter and son-in-law, the store being for their benefit, although operated in his name, as the former were unable to pay cash for the store and land, and the business could be operated to better advantage in his own name, for the reason that a deed of trust on the property would impair their credit and ability to run the store.
Under these circumstances we think the question is determined in favor of the appellee under the case of Gibson Paving Co. v. Mills, 95 Miss. 726, 49 So. 568, and the recent case of Bilbo v. Bilbo, 180 Miss. 536, 177 So. 772; not by Buckley v. Porter, 160 Miss. 98, 99, 133 So. 215. This last case, and the case of Bilbo v. Bilbo, were both decided by the same division of this court, and are not in conflict; but the proof in this case brings it under Gibson Paving Co. v. Mills, supra, and Bilbo v. Bilbo, supra. The court below having decided the case on the same theory as this court, the judgment will be affirmed.
Affirmed.