Opinion
No. 33715.
October 9, 1939.
1. VENUE.
The statute providing that all cases not otherwise provided may be brought in the chancery court of the county where the defendant or any necessary party defendant may reside or be found does not confer jurisdiction but fixes the venue or locality in which suit may be tried of which chancery court has jurisdiction (Code 1930, sec. 363).
2. EXECUTORS AND ADMINISTRATORS.
Jurisdiction of all demands by creditors or others against estate of decedent is vested in the chancery court of the county in which letters of administration were granted, even though there are other defendants in the suit, some of whom may reside or be found in counties other than that in which letters were granted. (Code 1930, sec. 352.)
3. EXECUTORS AND ADMINISTRATORS.
The chancery court of Hinds county did not have jurisdiction of suit by state tax collector to recover from executrix, appointed in Humphreys county for estate of deceased chancery clerk of Humphreys county from surety on chancery clerk's official bond and from county depository money allegedly misappropriated, notwithstanding process was served in Hinds county on surety's agent. (Code 1930, secs. 352, 363.)
APPEAL from chancery court of Hinds county; HON. V.J. STRICKER, Chancellor.
May Byrd and W.E. Gore, all of Jackson, for appellant.
The appellant relies upon the provisions of the Chancery Court venue statute (Sec. 363, Code 1930) in contending that the decree dismissing the suit "for want of proper venue and jurisdiction," is erroneous and should be reversed and the cause remanded for trial in the jurisdiction where suit was filed and a necessary defendant joined was found and served with process.
Griffith's Chancery Practice, Chap. 6, Secs. 151 and 155; Brashier v. O'Connor Sons, 180 So. 67.
Venue of this action must be controlled by the concluding clause of Section 363, Code of 1930, here quoted: "all cases not otherwise provided may be brought in the Chancery Court of any county where the defendant, or any necessary party defendant, may reside or be found." All the conditions provided by the statute have been met and satisfied in this proceeding.
The state has required foreign corporations doing business in Mississippi to establish their residence for the service of process and to designate an agent upon whom process may be served. Complying with that requirement, the defendant surety company here sued designated a resident citizen of the First District of Hinds County as agent upon whom process could be served in a suit against the corporation. In contemplation of law, therefore, within the meaning of our venue statute here involved, this defendant has been found in Hinds County and has been sued in Hinds County, and the other defendants moving to dismiss because not sued in their county have no legal cause to complain.
In the case of Moyse v. Cohn, 76 Miss. 590, 25 So. 169, the court held that a bill to foreclose a deed of trust may be filed in the chancery court where the trustee resides, although the property and all other defendants reside elsewhere.
Myers v. Martinez, 95 Miss. 104, 48 So. 291.
In Cutrer v. Tennessee, 98 Miss. 841, 54 So. 434, the court held that suit on bond of executor appointed in Tennessee to pay over money converted in Mississippi to be administered in accordance with the laws of Tennessee was maintainable in Mississippi.
If a necessary defendant has been found in Hinds County, the suit is maintainable in Hinds County.
The suggestion that State Treasurer James and State Auditor Craig are not proper or necessary parties, based upon the decision in the case of Gully v. City of Biloxi, 177 Miss. 782, 171 So. 698, is untenable, for the reason that under the allegations of the bill herein there is statutory authority vested in these officers to pay the money under their control to the legal representative of the deceased officer — the Chancery Clerk. (Sec. 6042, Code 1930.) Whereas, in the City of Biloxi case, the court pointed out that there was no statute which would authorize the Auditor or Treasurer to pay out of the State Treasury the money sought to be recovered as an illegal payment by the principal defendant Gully into the general fund of the treasury.
If the theory advanced by the appellees would require this suit to be filed in Humphreys County, no effect could be given to the express provision of the statute fixing the venue of equity suits.
The Bonding Company, a foreign corporation, cannot complain that it has been sued in the wrong court, because the statute required it to designate a resident agent for the service of process, and service upon such agent would authorize suit to be prosecuted against it in any county in Mississippi.
If the State Treasurer and State Auditor are not necessary parties defendant, still the Bonding Company is admittedly a necessary party defendant, and admittedly found in the county where suit was brought; hence, Hinds County Chancery Court should take jurisdiction and try said cause.
Murphy Wadlington and V.B. Montgomery, all of Belzoni, Percy Farish and D.S. Strauss, all of Greenville, Johnson Allen, of Indianola, and Butler Snow, of Jackson, for appellee.
The only proper venue for this suit is the Chancery Court of Humphreys County, Mississippi.
Sec. 363, Miss. Code 1930; Griffith's Chancery Practice, Sec. 151.
Mr. Justice Griffith, in his most excellent work on Mississippi Chancery Practice, has commented at some length upon the Mississippi decisions construing this equity venue statute. His comments show that in a suit in personam the venue lies and the suit, "must be filed in the county where one of the necessary parties defendant resides."
Griffith's Chancery Practice, Secs. 155 and 536.
There are two nominal defendants, Carl N. Craig, State Auditor, and Newton James, State Treasurer, whom complainant has arbitrarily undertaken to make parties defendant. However, these two parties are neither necessary nor proper parties.
There is no authority to sue the state treasurer or the state auditor for the disbursement of funds in the state treasury. This has been recently and expressly held by our supreme court.
Gully, State Tax Collector, v. City of Biloxi, 177 Miss. 782, 171 So. 698; City of Biloxi v. Gully, 182 Miss. 723, 180 So. 821.
We submit that this suit has not been brought in the county where a necessary party defendant resides. Hence, there is and can be no jurisdiction of this cause in Hinds County under the equity venue statute.
We find that venue has been retained in two cases involving several defendants and where the only defendant found in the county where suit was brought was a corporation. But both of these cases are circuit court cases.
Dean v. Brannon, 139 Miss. 312, 104 So. 173; Tucker v. Gurley, 176 Miss. 708, 170 So. 230.
We have not been able to find a single case where venue has been maintained in a personal action in the chancery court where none of the defendants resided in the county where the suit was brought and where venue depended entirely on finding one non-resident corporation defendant in the county where suit was brought.
Furthermore, the court will not seize upon a strained construction of the statute as a basis for the conferment of venue. The right of proper venue is a valuable right to the defendant.
67 C.J., pp. 97 and 98, Sec. 155.
We submit, that under the general provisions of Section 363, the general chancery court venue statute, the suit must be brought where some necessary party defendant resides.
Under express provision of this equity venue statute an executrix must be sued in the chancery court in which the will was probated.
Brashier v. O'Connor, 180 So. 67, 181 Miss. 872; Code of 1930, Sections 352, 363, 2912; Cutrer v. Tennessee, 98 Miss. 841, 54 So. 434; Myers v. Martinez, 95 Miss. 104, 48 So. 291; Newsome v. Fed. Land Bank of N.O., 185 So. 595; Buie v. Pollock, 55 Miss. 309.
The executrix of a public officer must be sued in the county of the residence of the deceased officer and executrix.
Code of 1930, Sections 474, 495, 1712; Portevant v. Pedleton's Administrator, 23 Miss. 25; Hewlett v. George, 68 Miss. 703, 9 So. 885, 13 L.R.A. 682; McNeely v. City of Natchez, 148 Miss. 268, 114 So. 484.
We submit that under the positive mandates of Section 495, Code of 1930, A.R. Hutchins was not liable to suit in Hinds County. We further submit that under Section 1712, Code of 1930, the executrix is only liable to be sued in any court in any personal action which might have been maintained against the deceased. We submit that both the policy of the state and the statutory mandate of the state expressly require that this suit must be brought in Humphreys County where A.R. Hutchins lived and resided and where his executrix lives and resides.
A.R. Hutchins, now deceased, was the chancery clerk of, and resided in, Humphreys County, Mississippi, and Kathleen P. Hutchins, his widow, who also resides in Humphreys County, was duly appointed by the Chancery Court of that county as executrix of A.R. Hutchins' estate. This is a suit in equity in the Chancery Court of Hinds County, Mississippi, by the state tax collector to recover from Kathleen Hutchins, executrix, the surety on A.R. Hutchins' official bond, and the county depository, money alleged to have belonged to Humphreys County and to have been misappropriated by Hutchins and the county depository. Process was served in Hinds County on an agent appointed for that purpose by the Massachusetts Bonding and Insurance Company, a Massachusetts Corporation, the surety on A.R. Hutchins' official bond. The state auditor and treasurer were also made parties defendant to the bill, which alleged that they had in their hands money due by the state to Hutchins.
Motions of the defendants to dismiss the suit for want of jurisdiction in the Chancery Court of Hinds County were sustained. The appellant invokes the following provision of Section 363, Code of 1930: "all cases not otherwise provided may be brought in the chancery court of any county where the defendant, or any necessary party defendant may reside or be found." This statute does not confer jurisdiction, but fixes the venue or locality in which suits may be tried of which the chancery court has jurisdiction. Section 352, Code of 1930, confers the jurisdiction of suits of the character of the one here upon the chancery court of the county in which letters of administration were granted. That section is in part as follows: "The court in which a will may have been admitted to probate, letters of administration granted, or a guardian may have been appointed, shall have jurisdiction to hear and determine all questions in relation to . . . all demands against it by . . . creditors, or others." Under this statute jurisdiction of all demands by creditors or others against an estate of a decedent is vested in the chancery court of the county in which letters of administration were granted, even though there are other defendants to the suit, some of whom may reside or be found in counties other than that in which the letters of administration were granted. Buie v. Pollock, 55 Miss. 309. See also 24 C.J. 768.
Affirmed.