Williams v. Stewart ( 1901 )

Terral, J.,

delivered the opinion of the court.

This is an action by Williams against Stewart, as executor of the last will and testament of Enos Rodgers, deceased, for breach of contract in the sale of the merchantable cotton contained in forty-nine bales of damaged cotton then at the warehouse of the Clarksdale Compress Company, at Clarksdale, in Coahoma county. The compress company had agreed with' ■Stewart that it would separate the good cotton from the dam.aged, and rebale the same; and Stewart, the executor, had agreed in writing with Williams that the good cotton, when separated from the damaged cotton and rebaled, would be delivered to him at a stated price. The good cotton having been picked from the damaged cotton and rebaled by the compress company, Williams demanded the cotton of the agent of Stewart, who declined to deliver the same, when he brought this suit for breach of contract. Suit was brought against Stewart before a justice of the peace at Clarksdale, where the contract was made between the parties, and service was had upon him; and there he appeared and resisted said suit, 'but Williams had judgment for $163.49. Stewart appealed to the circuit court, and there had the suit dismissed for want of jurisdiction; and from that judgment Williams appeals.

The motion recites as grounds for the dismissal of the suit: (1) That the defendant is a nonresident of Mississippi; (2) that Stewart is the executor of the last will and testament of Enos Rodgers, deceased, probated in the chancery court of Leflore county, Mississippi, • where Stewart is his qualified executor.

The justice of the peace at Clarksdale had jurisdiction of the subject-matter of the action and of the defendant, Stewart; and how the circuit court did not acquire jurisdiction of the case when appealed there by Stewart, we do not see. The contract between Williams and Stewart for the sale of the cotton, the breach of which is complained of, was made at Clarksdale; and § 2395 code. 1892 says that suits may be brought in the district in which the debt was contracted. Apart from the statute, a suit will lie, by the common law, in a transitory action, in any jurisdiction where service of process may be had. If a defendant, a resident freeholder or householder of the State of Mississippi, be sued in a transitory action before a justice of the peace without the county of his residence, he may, except when sued where the contract was made, have the case dismissed for such cause; but, where the defendant is a nonresident of the state, his being such nonresident or his being a householder or freeholder in such foreign state does not entitle him to dismiss the suit brought in this state. By the express letter of § 2295 code 1892, a person maybe sued where the contract was made, and this statute gave the justice’s court at Clarksdale jurisdiction of this case.

Section 653 code 1892, does not affect this case. It was intended to vest a jurisdiction in the courts of the county where administration of an estate is being had, over suits against foreign executors who have to be summoned by publication. Summons by publication was not necessary in this case. The summons was personally served upon the foreign executor, and at the place where the contract was made, in a court having jurisdiction of the subject-matter, and no reason is perceived why the justice court at Clarksdale had no jurisdiction of the case. We think the circuit court erred. The justice’s court at Clarksdale, where the contract was made, had jurisdiction of the subject-matter of the suit, and also of the person of the defendant, Stewart, and his appeal to the circuit court carried jurisdiction to the circuit court. Stewart as executor of an estate administered here, can only be sued in this state; but, like every other person, he may be sued in this state wherever process can be served upon him, unless some statute provides where only he may be sued, and § 653 does not operate as such a limitation.

Reversed cmcl remanded.