Opinion
No. 33184.
April 25, 1938.
1. BILLS AND NOTES.
A check payable to an attorney or bearer, indorsed by attorney, and delivered to plaintiff was a "bill of exchange" on which drawer was primarily liable and attorney was secondarily liable within statute requiring that in an action on a bill of exchange against a person secondarily liable, all state residents who are liable before that person must be joined (Code 1930, sections 2717, 2723, 2841, 2848, 2854).
2. BILLS AND NOTES.
The statute providing that in an action on a bill of exchange against a person secondarily liable, all state residents who are liable before that person must be joined and that action should be brought in county where party who is first liable resides is for the benefit of drawers and indorsers (Code 1930, section 2854).
3. BILLS AND NOTES.
The statutory requirement that in an action against a person secondarily liable on a bill of exchange all state residents who are liable before that person must be joined is for the benefit of persons secondarily liable and cannot be invoked by persons primarily liable (Code 1930, section 2854).
4. BILLS AND NOTES.
Where an action on a check against a drawer and indorser was brought in county of indorser's residence, change of venue to county of drawer's residence should have been granted on drawer's request under statute providing that action should be brought in county where person who is first liable resides, since that provision is for the benefit of the person primarily liable, and he has the right to be sued only in the county of his residence or of the residence of another person also primarily liable (Code 1930, section 2854).
ON SUGGESTION OF ERROR. (Division A. May 23, 1938.) [181 So. 336. No. 33184.]BILLS AND NOTES.
Where trial court treated motion presented by defendant, who was primarily liable on negotiable instrument sued on, asking that cause be dismissed or that he be allowed to file motion to transfer cause to county of his residence, as one either to dismiss or transfer cause, case should have been transferred to county of defendant's residence (Code 1930, section 2854).
APPEAL from the circuit court of Newton county; HON. D.M. ANDERSON, Judge.
Joseph S. Rice, of Starkville, for appellant.
Mr. S.P. Parrish, co-defendant below, appellant, was at the time of the institution of this suit and still is a resident of Oktibbeha County, Mississippi, and was never a resident of Newton County, Mississippi. This is admitted by plaintiff below, appellee, in her declaration and is nowhere denied in the record. Nevertheless, the said appellant was sued in Newton County when he was the only maker of the check and the only one primarily liable on the check for $400.00 sued on. An individual's check can have only one maker and thus have only one primarily or at first liable.
Sec. 2848, Code of 1930; J.S. Hamilton Co. v. Catchings Co., 58 Miss. 92.
Sec. 2854, Code of Mississippi 1930, to which part thereof your special attention is called reads as follows, to-wit: "And the action shall be brought in the county where the party, or someone who is at first liable on said bill or note, shall reside."
Sec. 2841, Code of 1930.
There have been a number of decisions made by this court showing that where suit has been commenced in the county in which one of several defendants resides, or may be found, venue cannot be changed to a county in which any of the other defendants reside. These decisions are based on the first part of Sec. 495, Code of Mississippi 1930; but that part of Sec. 2854, Code of Mississippi 1930, which is again quoted, to-wit: "And the action shall be brought in the county where the party, or someone who is at first liable on said bill or note, shall reside" restricts the effect of and qualifies that part of Sec. 495, Code of Mississippi 1930 insofar as suits on bills and notes are concerned as to venue of defendant at first liable.
A.B. Amis, Jr., of Newton, for appellee.
On the question of the application of the appellant for a change of venue may we observe that we cannot understand the law to be as contended by appellant. True it is that the appellant is a resident citizen of Oktibbeha County, Mississippi, and that he was sued in Newton County, Mississippi. Let it be observed, however, that W.A. Johnson was and is a resident citizen of Newton County, Mississippi, and that he as an endorser on such check was likewise sued on such check in the same action with the appellant. In other words, there was a party to the suit who was and is a resident citizen of Newton County, Mississippi.
We submit that a proper construction of Section 2854 will show such section to be not a qualification of the first part of Section 495. Section 2854 does not in any wise change Section 495 other than as to parties who are secondarily liable.
The rule as we remember it is that the pleadings in a case make the issues. Unless and until a motion or application for removal be made and filed there is no issue on the question of removal and certainly the court cannot be placed in error for not making up and filing such motion or application.
This court has said in the cases of Stanley v. Cruise, 99 So. 376, and Halliburton v. Crichton, 111 So. 743, and many other cases, that a defendant in any cause may waive territorial jurisdiction or venue.
Section 495, Code of 1930, requires such application to be made "before the jury is impanelled." No such application was made in this case before the jury was impanelled.
This is an action begun in the county court against the drawer and indorser of a check drawn by the appellant on a bank in Starkville, Miss., which the bank, at his request, declined to pay. From a judgment in the county court in favor of the appellee, the case was carried by the appellant to the circuit court, and the judgment was there affirmed. The check is for $400 payable "to W.A. Johnson, Attorney, or Bearer." It was indorsed by Johnson and delivered to the appellee.
The appellant resides in Starkville in Oktibbeha county, and Johnson resides in Newton county, where the action was brought. The appellant requested the county court to change the venue of the action from Newton county to Oktibbeha county, the place of his residence, but the court declined so to do.
Section 2854, Code of 1930, provides: "An action shall not be maintained on a bill of exchange or promissory note which has been indorsed against any one secondarily liable thereon, without joining in the action all persons residing in this state who are liable before such person on the bill or note; and the action shall be brought in the county where the party, or some one who is at first liable on said bill or note, shall reside." This check is a bill of exchange on which the appellant was primarily, and Johnson secondarily, liable. Code of 1930, sections 2841, 2717, 2723, and 2848.
The appellee says that section 2854 of the Code is for the benefit of parties secondarily liable on a bill of exchange and therefore cannot be invoked by parties primarily liable thereon. This section is for the benefit of both "drawers and indorsers of bills of exchange and promissory notes." McGrath Co. v. Hoopes, 26 Miss. 496. The requirement for the joining in an action against persons secondarily liable on a bill of exchange of "all persons residing in this state who are liable before such persons on the bill or note" is for the benefit of persons secondarily liable thereon and cannot be invoked by the person primarily liable thereon. Hamilton v. Catchings, 58 Miss. 92; Duncan v. McNeill, 31 Miss. 704; Crump v. Wooten, 41 Miss. 611. But the provision therein fixing the venue is for the benefit of the person primarily liable on the bill of exchange, and he has the right thereunder to be sued only in the county of his residence, or of the residence of another person also primarily liable on the bill of exchange. The change of venue should have been granted.
Reversed and remanded.
ON SUGGESTION OF ERROR.
The effect of the former opinion in this cause was to hold that the case should have been transferred to the county of the residence of the only defendant primarily liable on the negotiable instrument sued on, as provided for by section 2854, Code of 1930. On suggestion of error it is complained that the former opinion was erroneous, for the reason that there was no motion made by the appellant to transfer or change the venue of the cause. The fact is that the motion, as presented in the court below by the appellant, asked that the cause be dismissed, or that he be allowed to file a motion to transfer the same to the county of his residence.
This motion alleged sufficient ground for a transfer of the case, and the court below evidently treated the same as a motion to transfer, for the reason that the order overruling the motion is in the following language: "It is ordered that a motion to transfer or motion to dismiss as filed, be and the same is hereby overruled." Since the court treated the motion as one either to dismiss or transfer the cause, we adhere to the former opinion in holding that the case should have been transferred to the county of the residence of the appellant.
Suggestion of error overruled.