Opinion
No. 39776.
November 7, 1955.
1. Venue — waived.
In replevin action, where defendant made no objection to the jurisdiction of the Court and filed no application for a change of venue, and not only participated in trial but filed a counterclaim for damages, defendant waived any objection to venue. Sec. 2843, Code 1942; Chap. 233, Laws 1940.
2. Venue — motion for directed verdict — improper objection to.
A motion for directed verdict is not a proper objection to venue. Sec. 2843, Code 1942; Chap. 233, Laws 1940.
3. Venue — where no objection made — statutes.
Under statute providing that where Court has jurisdiction of subject matter but lacks venue jurisdiction, action shall not be dismissed for venue, but on objection of defendant shall be transferred to venue to which it belongs, Court could not dismiss an action and could not transfer it in absence of objection to venue. Chap. 233, Laws 1940.
4. Evidence — conditional sales contract — parol evidence — inadmissible.
In action on conditional sales contract providing that no agreement, promise, representation, or statement of warranty, either oral or written should be binding on holder unless expressly contained therein, buyer could not introduce evidence to effect that contract did not reflect agreement of parties.
5. Conditional sales contract — replevin — evidence — conditional seller entitled to immediate possession.
In action by seller against buyer to replevy automobile subject to conditional sales contract wherein space provided therein for date of first payment had been left blank, evidence established that buyer had understood when payments were to begin and that payments had been paid accordingly until default, and contention that note was due on demand; that no demand had been made; that there was no default; and that seller was not entitled to immediate possession of automobile when writ was sued out, was without merit.
Headnotes as approved by Gillespie, J.
APPEAL from the Circuit Court of Smith County; HOMER CURRIE, Judge.
Gartin Hester, Laurel, for appellant.
I. The Court erred in refusing to sustain defendant's motion for directed verdict at the conclusion of plaintiff's testimony because there was no proof that the venue of this action was in the Circuit Court of Smith County, Mississippi. Stanley v. Cruise, 134 Miss. 542, 99 So. 376; Sec. 2843, Code 1942.
II. The Court erred in refusing to admit the testimony of the defendant, Ance H. King, concerning the terms of the sale of the automobile. Bell v. Smith, 155 Miss. 227, 124 So. 331; Bennett v. Holloway, 55 Miss. 211; Hogan v. Commercial Credit Co., 150 Miss. 653, 116 So. 298; McCaskill v. Little, 214 Miss. 331, 58 So.2d 801; Munn v. Potter, 111 Miss. 180, 71 So. 315; Porter Hardware Co. v. Peacock, 129 Miss. 129, 99 So. 856; Wells v. Bullock, 192 Miss. 347, 5 So.2d 686.
III. Plaintiff's right to immediate possession of the automobile was governed by the terms of the conditional sales contract, which, failing to state a due date of defendant's obligation, made the conditional sales contract payable on demand, and no demand having been proved, plaintiff failed to prove that he was entitled to immediate possession of the automobile for defendant's default in payment of monthly installments. Secs. 42-55, Code 1942.
IV. The Court erred in granting the instruction for plaintiff appearing on page 22 of the record. Bond v. Griffin, 74 Miss. 599, 22 So. 187; Evans v. Junius Hart Piano House, 140 Miss. 467, 106 So. 9.
McFarland McFarland, Bay Springs, for appellee.
I. Cited and discussed the following authorities: Grenada Auto Co. v. Waldrop, 188 Miss. 468, 195 So. 491; Stanley v. Cruise, 134 Miss. 542, 99 So. 376; Secs. 2842, 2845, 2860, Code 1942.
This is a replevin suit wherein appellee, plaintiff below, obtained judgment for the possession of an automobile theretofore sold by appellee to appellant under a conditional sales contract, the terms of which were allegedly breached by non-payment of the last six installments.
(Hn 1) Appellant contends that the venue of the suit was not in Smith County because no proof was offered that the automobile was found in Smith County or that appellant was found in Smith County. We think the record is sufficient both as to the property and as to the person, either of which, if found in the county, permits the suit to be brought therein under Section 2843 of the Mississippi Code of 1942. We do not set forth the evidence on the question of venue, it not being necessary to do so. Appellant made no objection to the jurisdiction of the court and filed no application for a change of venue. On the other hand, he not only submitted to the jurisdiction by participating in the trial, but invoked the jurisdiction of the Circuit Court of Smith County by filing a counterclaim for damages. This constituted a waiver of any objection to the venue. 21 C.J.S., Courts, Sec. 109. (Hn 2) Motion for a directed verdict is not a proper objection to venue.
(Hn 3) Appellant seeks to sustain his position by relying on the case of Stanley, et al v. Cruise, 134 Miss. 542, 99 So. 376. Whatever else may be said of that case, we need only point out that it was decided February 25, 1924, and since that date, Chapter 233 of the laws of 1944 has been enacted and provides: "Where an action is brought in any circuit, chancery, county or justice of the peace court of this state, of which the court in which it is brought has jurisdiction of the subject matter, but lacks venue jurisdiction, such action shall not be dismissed because of such lack of proper venue, but on objection on the part of the defendant shall, by the court, be transferred to the venue to which it belongs."
The court could not dismiss the suit. It could not transfer it absent an objection to the venue.
(Hn 4) Appellant complains that the court erred in sustaining objection to testimony offered by appellant to the effect that the conditional sales contract did not reflect the agreement of the parties, that whereas the contract showed an allowance of $750 for the trade-in, a Ford truck, when, in fact, the agreement between the parties was that in addition to the $750 allowed as shown by the conditional sales contract, the appellee would pay appellant $750 cash when the Ford truck was sold. The amount due on the conditional sales contract, according to appellee's contention, was less than the $750. The conditional sales contract in this case provided that "no agreement, promise, representation, statement or warranty, either oral or written, express or implied, shall be binding on the holder unless expressly contained herein." The evidence was not admissible. Grenada Auto Company, et al v. Waldrop, 188 Miss. 468, 195 So. 491.
(Hn 5) The conditional sales contract provided for a balance due on the purchase price of the automobile of $1888.92, payable in eighteen successive monthly payments of $104.94 each. The space provided for in the contract for the date of the first payment was left blank. Appellant contends that because of this, the note was due on demand; that no demand had been made; that there was no default; and the appellee was not entitled to immediate possession of the automobile when the writ was sued out. Appellant testified that he received a letter from appellee advising him that the first payment was due on December 1, 1951. The record clearly shows that appellant understood when the payments were to begin, and appellant paid accordingly until twelve payments were made, leaving six payments owing and two past due when the action was brought. There is no merit in this contention.
Appellant complains of one instruction, but we find that it contained no reversible error.
There is no issue worthy of discussion in the cross-appeal.
Affirmed on direct and cross-appeals.
Lee, Kyle, Arrington and Ethridge, JJ., Concur.