Gridley, Maxon & Co. v. Turner

This case was decided at a former sitting of this court, and the suggestion of error filed has been considered by another judge than the one who wrote the opinion, and it has been brought into conference and discussed, and we deem it proper to reply thereto.

In this case there was sufficient evidence for the jury to find, and the jury did find, that appellant did an intrastate business in Jackson county, Miss., where the suit was brought and the case tried. The principal question presented for consideration was whether the process served upon the agent of the appellant was a proper service, and whether the appellant was engaged in intrastate or interstate commerce.

The appellant having done an intrastate business in this state without complying with the requirements by designating an agent upon whom process may be served and filing same with the Secretary of State, and having filed a motion to quash the process so served, such motion constituted its appearance under section 2999, Code 1930. This has been held by repeated decisions to constitute an appearance for all purposes, the action being transitory and not local. Illinois Central R.R. Co. v. Swanson, 92 Miss. 485, 46 So. 83; Standard Oil Co. v. State, 107 Miss. 377, 65 So. 468; Fisher v. Pac. Mut. Life Ins. Co., 112 Miss. 30, 72 So. 846; McCoy v. Watson,154 Miss. 307, 122 So. 368; Batson Hatten Lumber Co. v. McDowell,159 Miss. 322, 131 So. 880; Turner v. Williams, 162 Miss. 258,139 So. 606. In McDonough v. Stringer, 155 Miss. 179,124 So. 334, it was held that under section 2724, Code 1906, section 2378, Hemingway's 1927 Code, the jurisdiction of justices of the peace of transitory causes of action against nonresidents is as full and complete as that of circuit courts under Laws 1926, c. 155, amending Code of 1906, section 707, as amended (Hemingway's Code 1927, section 500,) over like actions, except as to amount involved; that justices of the peace had jurisdiction of personal actions by nonresident plaintiffs against nonresident defendants found and personally served with summons but neither a householder nor a freeholder in district in which they were sued.

The cause of action here sued on is transitory as distinguished from local, and follows the person; consequently the case is controlled by the above-cited authorities, and the case of Arnett v. Smith, 165 Miss. 53, 145 So. 638, and the case of First National Bank of St. Louis v. Mississippi Cottonseed Products Co., 171 Miss. 282, 157 So. 349, do not apply.

Whether there is any conflict in the rules announced in the various decisions referred to is not now necessary to consider. The case at bar is controlled by the cases construed under section 2999, Code of 1930, and the suggestion of error, must, therefore, be overruled.

Overruled.