West v. McClure , 85 Miss. 296 ( 1904 )

Calhoon, J.,

delivered tbe opinion of tbe court.

McClure, claiming to own some land in • Tunica county, Mississippi, finding West in Shelby county, Tennessee, sued him in tbat county and state, and bad him served there with process to defend bis action against him. McClure’s declaration in tbe circuit court of Tennessee has two counts. Tbe first avers tbat West went on bis Mississippi land and cut trees, and claims in assumpsit the value of tbe trees so cut and carried off and converted to bis own use by West. Tbe second count charges tbat McClure “entered upon tbe said land and cut (tbe trees), and thereupon be became liable to tbe plaintiff (McClure) for tbe value of said trees, and thereupon be became liable,” etc., and “undertook and promised to pay,” etc. Both counts are clearly in assumpsit for values on tbeir face, and neither is technically for trespass quare clausum fregit. To this Tennessee declaration West pleaded not guilty, non assumpsit, and specially tbat be went on tbe land ¿nd cut tbe trees under a license from tbe then owner, and before McClure was owner. On these issues, and these only, trial was bad, and a verdict rendered for McClure, from judgment on which West appealed to the supreme court of Tennessee, which affirmed the judgment. Thereupon McClure sued West in Tunica county, Miss., on that Tennessee judgment, and West .pleaded that the Tennessee court had no jurisdiction, the action in its "second count being in fact trespass quare clausum fregit, which is local, and ■not transitory, the land being in.Mississippi; and’that the other -count was put in simply to prevent a plea to the jurisdiction, ■being a wrongful joinder of assumpsit with the trespass. A ■demurrer to this plea was sustained, and West declined to .plead ■further, and comes to this- court. The transcript of the1 Tennessee record discloses no testimony on either side, but the plea in’Mississippi avers that no evidence was offered on the claim in assumpsit, and that the jurisdictional point was made and overruled. As to this the Tennessee transcript is silent.

On these facts, and our view of Evans v. Miller, 58 Miss., 120 (38 Am. St.. Rep., 313), and Alliance, etc., v. Nettleton, 74 Miss., 584 (21 South. Rep., 396; 36 L. R. A., 155; 60 Am. St. Rep., 531), and Archibald v. R. R. Co., 66 Miss., 424 (6 South. Rep., 238), and the intimation in Oliver v. Loye, 59 Miss., 324, the case now 'before us is

Affirmed,