Summary
holding that a bill for divorce must be dismissed, not transferred, if proper venue is lacking
Summary of this case from Hampton v. HamptonOpinion
No. 36443.
September 22, 1947.
1. DIVORCE.
The statute prescribing that divorce suit must be instituted in county of residence of complainant is not a mere statute of venue that may be waived, but is statute of jurisdiction of subject matter of suit (Code 1942, sec. 2738).
2. DIVORCE.
The jurisdiction to grant divorce depends solely upon statute and is not derived from the common law.
3. ACTION.
Where statute creates right of action which did not exist at common law and fixes conditions upon which right may be asserted, the conditions are an integral part of the right granted and are substantive conditions, the observance of which is essential to assertion of right.
4. DIVORCE.
Under statutes, complainant suing for divorce must file bill in county in which complainant resides if defendant is nonresident, and must prove that one of parties to action has been a qualified resident of State for one year preceding commencement of suit, and must allege and prove one of the 12 statutory grounds for divorce (Code 1942, secs. 2735, 2736, 2738).
5. VENUE.
A general statute having reference to ordinary rules as to venue in general run of cases brought under substantive rules of common law or equity is not applicable to special statute which not only creates a right unknown to the common law but in creating the right prescribes the means and the course of procedure, including the venue by which the right is to be asserted, making thereby the prescribed course exclusive (Code 1942, sec. 1441).
6. STATUTES.
When a special and particular statute deals with a special and particular subject, its particular terms as to special subject control over general statutes dealing with the subject in general.
7. DIVORCE.
The general statute providing that court lacking venue jurisdiction but having jurisdiction of subject matter shall be transferred to the proper venue is not applicable in divorce suit, which is governed by special statute providing that divorce bill must be filed in county in which complainant resides if defendant is nonresident (Code 1942, secs. 1441, 2738).
8. DIVORCE.
A divorce bill against a nonresident husband was properly dismissed where bill was not filed in the county of residence of complainant as required by statute (Code 1942, sec. 2738).
APPEAL from the chancery court of Prentiss county. HON. WM. H. INZER, Chancellor.
Donald Franks, of Booneville, for appellant.
Section 2736, Code of 1942, deals with the jurisdiction of divorce suits. This section by its very wording limits the jurisdiction of the chancery court to cases where one of the parties has been an actual bona fide resident within this State for one year next preceding the commencement of the suit. There are no other jurisdictional limitations imposed upon the chancery court by this section.
Section 2738, Code of 1942, can only be construed to refer to venue and not jurisdiction because it begins with the advice of where to file the bill. In other words, this section prescribes the county in which a bill for divorce must be filed.
27 C.J.S. 654, Sec. 83.
Section 1441, Code of 1942, is a modification of Section 2738 and all other venue statutes in that it prohibits the court from dismissing an action for lack of venue but directs the court to transfer the suit to the proper venue if an objection is made by the defendant.
Let us examine appellant's construction of Section 1441 and determine if such construction is a reasonable one and further if such construction presents any serious difficulties in matters of divorce. We understand that prior to the passage of Section 1441 a bill for divorce had to be filed in the county prescribed by Section 2738. This was so not because of any jurisdictional limitations of the chancery court in respect to its control and authority over divorce matters. The chancery court's jurisdiction was limited only to the case stated in Section 2736. The county in which the bill was required to be filed by Section 2738 was a procedural matter only. Of course, this procedural requirement as to venue must be complied with as in all other suits. Prior to the enactment of Section 1441 when a suit was brought in the wrong venue the same was dismissed by the court as the court had no authority to transfer the suit to the proper venue. By the terms of this section, where an action is brought in any circuit, chancery, county, or justice of the peace court and such court has jurisdiction of the subject matter but lacks venue, such action shall not be dismissed but on objection by the defendant shall be transferred to the venue to which it belongs. Conversely, if no objection be made as to venue the court may proceed to try the case. This section evidently was intended by the legislature to cover all actions because it contains no restrictions, limitations or reservations.
Appellant's argument after all resolves itself into one simple proposition and that is that the chancery court's jurisdiction in suits for divorce is dependent upon the period of residence without regard to the place thereof so long as such residence is within the boundaries of the State. In other words, Section 2736 contains no requirement as to the place or county of residence in determining jurisdiction but only prescribes the period or length of residence. If this be true, it is evidence that Section 1441, Code of 1942, is a modification of Section 2738, Code of 1942.
No appearance for appellee.
Complainant, appellant here, a resident of Tishomingo County, filed her bill for divorce in Prentiss County against her husband, a non-resident of the State. Because the bill was not filed in the county of the residence of the complainant, as mandatorily required by Sec. 2738, Code of 1942, the Chancellor dismissed the bill, and the complainant has appealed.
In Amis on Divorce in Mississippi, Sec. 240, it is stated "that the statute prescribing where the suit must be instituted is not a mere statute of venue that may be waived but one of jurisdiction of the subject matter of the suit; . . ." No case from our own court is cited in support of that statement, there being heretofore no case in this State upon the precise point; but the statement reflects the opinion of Bench and Bar in this Jurisdiction time out of mind, and we now affirm it.
The power or authority or jurisdiction to grant a divorce in this country depends solely upon statute, and is not derived from the common law. 27 C.J.S., Divorce, Sec. 69, page 629 et seq.; 17 Am. Jur., p. 151. This brings into operation the well established rule that where a statute creates a right of action which did not exist at the common law and the same statute fixes the conditions upon which the right may be asserted, the conditions are an integral part of the right thus granted — are substantive conditions, the observance of which is essential to the assertion of the right. As tersely stated in United States ex rel. Texas Portland Cement Co. v. McCord, 233 U.S. 157, 34 S.Ct. 550, 58 L. Ed 893, when a right is given solely by statute it is subject to the terms named in the statute. Compare Louisville N.R. Co. v. Dixon, 168 Miss. 14, 20, 150 So. 811; and see 1 Am. Jur., Actions, Sec. 11, p. 410; 1 C.J.S., Actions, Secs. 5 and 9a, pp. 973, 990.
The conditions prescribed by the State, by its divorce statutes, under which it will permit a marriage to be dissolved by divorce are (1) that the complainant shall allege and prove one of the twelve grounds therefor as set forth in Sec. 2735, Code 1942; (2) that one of the parties shall have been a bona fide resident of this State for one year next preceding the commencement of the suit, Sec. 273, and (3) that the bill must filed in the county in which the complainant resides if the defendant is a non-resident, Sec. 2738. Unless there is a compliance with the third condition there had as well be none with condition number two, and they are both essential to the assertion of condition number one. See Hetherington v. Hetherington, 200 Ind. 56, 59, 160 N.E. 345, to this precise point. A sufficient review of the authorities to the effect that a divorce suit brought in the wrong county goes to the jurisdiction, and is not a mere matter of venue, is found in Haygood v. Haygood, 190 Ga. 445, 9 S.E.2d 834, 130 A.L.R. 87, and the annotations in the volume last cited.
Appellant concedes that all the foregoing would be true except for Sec. 1441, Code 1942, which she says is a modification of Sec. 2738. The section relied on is in the following language:
"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."
It will be at once observed that the quoted statute is a general statute and has reference to the ordinary rules as to venue in the ordinary and general run of cases brought under the substantive rules of common law or equity. It can have no application to a special statute which not only creates a right unknown to the common law, but in creating the right prescribes the means, the course of procedure including the venue by which the right is to be asserted, making thereby the prescribed course exclusive. The rule is that when a special and particular statute deals with a special and particular subject, its particular terms as to the special subject control over general statutes dealing with the subject in general. Gully v. Lumbermen's Mut. Casualty Co., 176 Miss. 388, 397, 166 So. 541, 168 So. 609; Dunn Const. Co. v. Craig, 191 Miss. 682 701, 2 So.2d 166, 3 So.2d 834.
Sec. 1441, Code 1942, has, therefore, no application to the statutes on the special or particular subject of divorce, and so far as divorce cases are concerned Sec. 1441 stands as if it had never been enacted.
Affirmed.