Cain v. Simpson

Simrall, C. J., delivered the opinion of the court. C. A. Simpson, a householder and resident citizen of Mon [524] roe County, being in Chickasaw County, was there sued before a justice of the peace. He moved to dismiss the cause for want of jurisdiction. The motion was overruled, and judgment quod recwperit entered against him. He appealed to the Circuit Court, and there renewed the motion, which was sustained ; and to that judgment this writ of error has been sued out. The civil jurisdiction of justices of the peace is defined in §§ 1302, 1303, Code of 1871; the former defines the subjects, the latter the territorial limits. It “ shall be coextensive with his county; he may issue any process in matters within his jurisdiction, to be executed in any part of his county; but every freeholder and householder shall be sued in the district in which he resides, if there be a justice acting therein, and qualified to try such suit, or in the district in which the debt was contracted, the liability incurred, or in which the property may be found.” Sect. 1320 provides for a case where there is more than one defendant; then suit must be brought in the district where either defendant resides, and process may go to any part of the county for the other, or to any other county of the State. The policy of the legislation seems to be that a plaintiff, in personal suits which are not local in their character, must sue a citizen of the State in the county of his residence. In the Circuit Court law, § 522, above cited, suits may be brought in that county.where “ the defendants, or any one of them, may be found.” But the final clause of the section gives the right to the “ citizen ” to remove the cause to the county of his residence, on showing “ that his residence is really in another county.” If Simpson had been sued in the Circuit Court of Chickasaw County, he could have procured the transfer of the suit to Monroe County. If such application is not made, he submits to the jurisdiction, and waives his right. There is no provision in the justice of the peace law for the removal of a suit to the district in which the defendant, a freeholder or householder, resides, when sued in some other district. The consequence of a failure to sue a freeholder and householder in his proper district is a question of jurisdiction, and, when the fact is presented to the magistrate, he has no [525] power to transfer to the proper district, but must desist altogether from further cognizance of the suit. Considering all the enactments on the subject together, we think this to be a correct summary. The creditor must sue his debtor, who is a freeholder or a householder, in the district in which he resides, if there be a magistrate acting therein, or in the district in which the debt was contracted or the property is situated. If there are two oi; more defendants, he may issue process for the non-resident of the district to any other district or part of the county, or to any other county, and acquire jurisdiction over all of them. Whilst the statutes are so cautious and precise in giving the freeholder or householder the benefit of the local jurisdiction of the county of his residence or freehold, we cannot suppose that the legislature meant to allow suits against a “freeholder ” or “ householder ” to be brought in any other county, where business or inclination may take him. If a resident citizen of Hinds is casually found in Marshall County, and there sued before a justice of the peace, however inconvenient it may be to make his defence at so remote a place, he cannot procure a transfer of suit to the county of his residence. His remedy is to except to the jurisdiction, and compel the plaintiff to litigate with him in his county. Nor does this interpretation of the statute produce mischief or hardship. If the defendant has neither a freehold nor residence, he may be sued in any county where he may be found. We think the magistrate in Chickasaw County did not have jurisdiction. It was proper, therefore, to sustain the motion. Judgment affirmed, motion sustained and suit dismissed for want of jurisdiction in justice of the peace.