Cook v. Pitts

Ethridge, J., delivered the opinion of the court. W. T. Pitts, a real estate dealer in Sunflower county, Miss., filed suit against E. B. Cook in the district court of Sunflower county for the sum of two thousand, seven hundred and forty dollars and fifty cents, claimed as a commission due Pitts on the sale of real estate under a contract between Cook and Pitts, made an exhibit to the declaration, by which Cook engaged Pitts to sell certain real estate, and in which it was agreed that Pitts should sell the real estate for nineteen thousand eight hundred and ten dollars cash, the buyer to assume, in addition, a mortgage loan of thirty-five thousand dollars, and to have one year in which to make sale. The lands embraced one thousand, five hundred and sixty-six acres. In this contract, Cook reserved the right to sell the land himself, but it was provided that in event Cook should sell the land to a purchaser not procured by Pitts, the [44] latter was to receive a commission of five per cent, of the fifty-four thousand eight hundred and ten dollars consideration. This contract was signed on the 30th day of January, 1915, and on the 16th day of April, 1915, Cook conveyed the land in question to one Emma B. Due for a consideration of thirteen thousand five hundred dollars and the assumption by the buyer of the thirty-five thousand dollars mortgage on the property. The suit was filed on the 1st of September, 1915, and on the 22d day of September Cook filed an affidavit in the cause, setting forth that he was a citizen of the state of Mississippi, a resident and householder of Sharkey county; that he was sued out of the county of his residence. Motion was made for a change of venue to Sharkey county, Miss., the county of his residence. On the motion for a change of venue, Cook testified that he moved to Sharkey county on the 28th or 29th of January, 1915, and had been living there ever since; that he was a householder of Sharkey county Miss., the head of a family, but on cross-examination stated that he did not know whether or not he was there temporarily or permanently. It appears from the evidence on the motion that Cook had sold the plantation upon which he was living in Sharkey county, but had reserved the use of it until the 1st of Januáry, 1916, and was living in Sharkey county, and process was served on him in Sharkey county in this suit. It appears that Cook, in August 1915, made an affidavit in which he stated that he was a citizen of the state of Mississippi for more than two years last past, had been a resident of the Indianola precinct, Sunflower county, for more than one year, and that he was a white Democrat and entitled to vote in the state primary election. On this proof the motion for a change of venue was overruled. Thereupon the defendant filed a demurrer to the declaration, in which he challenged the sufficiency of the declaration on the ground that it did not show any consideration, or that any act or thing was done by the plaintiff under [45] the contract in question as a consideration for the contract. The demurrer was overruled, and the defendant applied for leave until the next term of court, or a later day of the then present term, in which to plead. The court overruled this motion, hut allowed the defendant two or three hours in which to plead. Defendant thereupon pleaded the general Issue, and pleaded specially that there was no consideration for the contract sued on; that the plaintiff did not pay money or other valuable thing, or do any act under said contract as a part of said commission. Under this special plea issue was joined by consent. Pitts was introduced, and testified that he advertised this property for sale in several places, and that he procured a party who would have purchased it but for the sale made by Coolc. The defendant Cook offered no testimony on the merits of. the case, and the court granted a peremptory instruction to find for the plaintiff for five per cent, on the sum of fifty-four thousand eight hundred and ten dollars; and from a judgment entered for said amount defendant appeals. The question arises as to whether the case should be reversed because of the denial of the motion for a change of venue. We think it was error to deny the motion for a change of venue. Section 707 of the Code of 1906 reads as follows: ' “Civil actions of which the circuit court has original jurisdiction shall be commenced in the county in which the defendant or any of them may be found, except where otherwise provided, and except actions of ejectment and actions of trespass on land, which shall be brought in the county where the land, or some part thereof, is situated; but if the land be in two or more counties, and thé defendant reside in either of them, the action shall be brought in the county of his residence, and in such cases process may be issued against the' defendant to any other county. -If a citizen resident in this state shall be sued in any action, not local, out of the [46] county of his household and residence, the venue shall be changed, on his application, to the county of his household and residence. ’ ’ In Campbell v. Triplett, 74 Miss. 365, 20 So. 844, Judge Cooper held that where an attachment was sued out in Winston county, but which was not served on any property in that county, and where the defendants were served in another county, and none of the defendants were found in the county where the suit was filed, the court did not acquire jurisdiction. He says: “The venue of civil actions of this class is in the county ‘in which the defendants,'or any of them, may be found,’ and if no defendant is served with* process in the county in which the suit is brought, the jurisdiction of the court does not attach. Wolley v. Bowie, 41 Miss. 553; Pate v. Taylor, 66 Miss. 97 [5 So. 515].” See, also, Spain v. Winter, Walk. 152; McLeod v. Shelton & Minor, 42 Miss. 517. Judgment of the court below will be reversed, the motion for change of venue sustained, and the cause remanded to the circuit court of Sharkey county for further proceedings. Reversed and remanded.