Stanley v. Cruise

Sykes, P. J., delivered the opinion of the court. The appellees who are complainants in the chancery court seek in their bill to have declared null and void two judgments in replevin'rendered against them, and to have perpetually enjoined the issuance of execution upon these two judgments. The grounds set up in the bill are, briefly stated, that neither the defendant Cruise in the replevin suits, nor the mules replevied, were in the supervisors’ district of the justice of the peace who issued the process and tried the causes. The bill further sets up a meritorious defense to thereplevin suits. A temporary injunction was issued by the chancellor, and motion was duly made to dissolve this injunction which was heard on bill, answer, and proof. The chancellor declined to dissolve it, from which decree this appeal is here prosecuted. The uncontradicted testimony heard upon this motion was to the effect that the replevin proceedings were instituted and the trials.had in district No. 5, and that the defendant Dib Cruise lived in another district and the mules were in his possession at his place of residence. At the trial of the replevin suits the defendant Cruise appeared and judgments were rendered against him. It is the contention of counsel for appellants that the appearance of the defendant Cruise gave the justice of the peace court jurisdiction to try the cause. The case of Catlett v. Drummond, 113 Miss. 450, 74 So. 323, is relied upon as authority for this contention. In the Catlett Case the suit was a personal action and the court held that in that character of suit the venue conferred by section 2724, Code of 1906, Hemingway’s Code, section 2223, was a personal privilege which may [547] be waived by failure of the defendant to cláim at the proper time. The venne in replevin suits is governed by section 4216, Code of 1906, Hemingway’s Code, section 3045. Under this section an action of replevin in a justice of the peace court should be brought in the justice of the peace district in which the defendant, or one of several, or the property, or some of it, may be found. In the two replevin cases in question in this suit neither the defendant nor the property was found in the justice of the peace district, but both were in another district. The action of replevin is one in rem and the venue is not therefore a mere personal privilege which may be waived, as is the case in an action in personam. The questions here involved were all settled in the case of Lewis v. Sinclair, 126 Miss. 16, 88 So. 401. In that case, as in this, the defendant appeared at the trial, but the court held that the justice of the peace had no jurisdiction to try the cause for the reason that neither the property nor the defendant was found within the jurisdiction of the court that tried the cause. For these reasons the two judgments rendered in the replevin suits are void. The question as to the right of possession of the two mules is to be determined upon the hearing of the cause upon the merits.v Affirmed and remanded.