text:
    Charles C. MEDINA, Carrie S. Medina and Lake Crest Acres, Inc. v. STATE of Mississippi ex rel. A. F. SUMMER, Attorney General.
    No. 49652.
    Supreme Court of Mississippi.
    Dec. 21, 1977.
    Rehearing Denied Feb. 22, 1978.

      Sharp & Fisher, William L. Sharp, Jimmy B. Fisher, Corinth, for appellant.
    A. F. Summer, Atty. Gen. by J. B. Gar-retty, Sp. Asst. Atty. Gen., Jackson, for appellee.
    Before PATTERSON, ROBERTSON and SUGG, JJ.
   PATTERSON, Chief Justice, for the Court:

Charles C. Medina, his wife Carrie S. Medina and Lake Crest Acres, Inc. appeal from a decree of the Chancery Court of Tishomingo County enjoining their use of that part of Cook Landing and Medina Roads, which lie on state property, for access to the Medina home. The State cross-appeals contending that it was entitled to damages.

Prior to 1936 D. P. Adams and wife owned a tract of land in Tishomingo County near Kreamer and Indian Creeks. A public road ran roughly parallel to Kreamer Creek on its north bank in an easterly direction to the present boat docks. It then ran northward paralleling the west bank of Indian Creek, now a part of Pickwick Lake, to Cook Landing. This road was called “Cook Landing Road.”

In 1936 the Adamses conveyed 98 acres of their land to the Tennessee Valley Authority, hereinafter TVA. This conveyance, necessary to Pickwick Dam Reservoir, was “subject to the rights of a county road affecting 1.9 acres, more or less.” At that time another road, now called Medina Road, ran northwesterly from a point on Cook Landing Road to Short Creek School. It was primarily used for public travel to the school and was maintained by the populace of the neighborhood.

On March 3, 1936, TVA and the State of Mississippi by its authorized representative, the Tishomingo County Board of Supervisors, signed an agreement that “certain county bridges and portions of certain county roads or highways in Tishomingo County, all lying below mean sea level elevation of 418 feet will be inundated and must therefore be taken for this public purpose. . . ”

The board of supervisors then resolved and placed into its minutes the following:

Be it further resolved that the county bridges and portions of county roads and highways in Tishomingo County, located in the Pickwick Reservoir area, and lying below the mean sea level elevation of 418 feet, be and the same are hereby closed, abandoned and vacated as public bridges, roads and highways in the county of Tish-omingo, State of Mississippi.

A map introduced at trial illustrates the 418-foot contour line traverses the public road west of the boat docks as well as crossing it several times northward on Cook Landing Road.

After the land was acquired by TVA, the residents moved from the area and the school was closed. Later the dam was con- and a lake was formed flooding the land as expected in the area of Indian Creek, including those portions of the public roads below mean sea level elevation of 418 feet.

In 1958 TVA conveyed the property now known as J. P. Coleman State Park to the State of Mississippi. The roadways affected by this suit traverse these park lands.

Several years prior to this trial TVA sold timber in the area at which time Bill Robinson constructed a road west of the present boat docks where Cook Landing Road was flooded. This newly-constructed road as well as the old road west of the boat docks became known as the Bill Robinson Road.

In 1964 the Medinas acquired two lots from Bill Robinson and moved a house trailer onto this land. They later purchased other land from Robinson and Adams, forming a single tract with about 1100 feet fronting the Bill Robinson Road. The Me-dinas used Cook Landing and Medina Roads in moving their mobile home to the site and afterward utilized a driveway previously constructed by Robinson for access to their home. This accessway to Bill Robinson Road later eroded and was abandoned. Thereafter the Medina and Cook Landing Roads were used for access until barricades were erected by court order on October 30, 1974.

At the request of the residents of the Kreamer Creek area, prior to the court order, the supervisor of the district agreed to improve Cook Landing Road north of the boat docks and to construct a school bus “turnaround.” Freeman Bray was engaged for the improvements for which Medina was to contribute $2000 and the county $500. In the fall of 1973 the park superintendent discovered that Bray had cut numerous trees in widening an old roadway and directed him to cease his activities when he learned the park commission had not authorized the construction. It was estimated that ninety-three commercial trees had been felled and that it would cost approximately $2000 to restore the area to its previous condition. Additionally, there was uncontradicted testimony that Medina had erected a fence extending from the northern boundary of his property over Cook Landing Road and had placed “No Trespassing” signs along this barrier.

The State in its bill of complaint sought, among other things, an injunction, restoration of the land and statutory and compensatory damages from the Medinas and Lake Crest Acres, Inc. It alleged the Medinas, owners of the land adjoining the state park, and Lake Crest Acres, Inc. the alleged lessee, were trespassing on park property in constructing a roadway nearly one-half mile in length and in so doing had brought equipment, erected fences, and destroyed trees and shrubs on state property. The court issued a temporary injunction in March 1973 and later inspected the property and directed that barricades be erected to protect the integrity of its injunction.

The cause was heard on its merits in March 1975. The evidence establishes that Cook Landing Road north of the boat docks had not been maintained by the county since 1936. It demonstrates also that Bill Robinson Road west of the docks had been maintained to a degree although the school had been closed and the inhabitants had moved away. It also evidences that the public had not been denied access to Cook Landing and Medina Roads although the roads had served only as occasional passageways for sportsmen and loggers. The court conducted a second inspection of the property and permanently enjoined the defendants from using the Medina and Cook Landing Roads as an accessway to their property. The State was denied a monetary award because the court found no visible evidence of damage.

The following is argued on appeal:

1. Cook Landing Road is a public road which has never been closed by the board of supervisors and remains a public road.

2. Medina Road is an access easement which has existed throughout the years and was retained when the land was conveyed to TVA and then to the State of Mississippi.

3. TVA did not acquire nor did it convey to the State of Mississippi the public roads or existing easements.

4. It is the public policy of Mississippi to lend its arm to landowners to gain ingress and egress where none exists.

Appellants first complain that Cook Landing Road is a public road and has never been closed by the board of supervisors. It was stipulated by the parties in the trial court that Cook Landing Road was at one time public and proof was presented as to its present status. However, the chancellor held that Cook Landing Road never became a public road. With this finding we must disagree.

It is settled that a public road may be created by prescription or by dedication, as well as by being laid out and established in accordance with statutory provisions, where the general public or several freeholders or householders of the county are interested in the road, and where public interest for convenience requires the road to be established. Coleman v. Shipp, 223 Miss. 516, 78 So.2d 778 (1955); Armstrong v. Itawamba County, 195 Miss. 802, 16 So.2d 752 (1944); Rylee v. State, 106 Miss. 123, 63 So. 342 (1913). Cook Landing Road has been used by the public since the days of the Indians. More recently residences were established adjacent to it and were served by a mail route, and the testimony of a former supervisor evidences that it was public during the time of his service from 1924 to 1932. Consequently, we conclude the public character of Cook Landing Road was clearly established.

In maintaining that Cook Landing Road was public and had not lost that character because it was never closed by the board of supervisors, the appellants cite Barrett v. Pilgrim, 317 So.2d 382 (Miss.1975), as authority for the propositions that (1) a court is without power to close a public road in private litigation unless predicated upon an order of the board of supervisors, (2) mere non-use of a road will not constitute an abandonment to deprive it of public character or justify its closing by a court in private litigation, and (3) Mississippi Code Annotated section 65-7-7 (1972) prohibits the obstruction of any public road or highway.

The following appears in Barrett, supra, in which this Court declined to close a road:

The Court is without power, however, to close a public road in private litigation between individuals unless such action is predicated upon a finding that there has been a valid order of the Board of Supervisors closing the road, spread upon its minutes, if it is a county road, or that similar official action has been taken by the Mississippi State Highway Commission and is reflected by its official records if it is a state road or highway.

(317 So.2d at 383)

We note that Hatch v. Board of Supervisors, 56 Miss. 26 (1878), is the authority for our holding in Barrett. An examination of Hatch reveals it to be a suit concerning the meaning of an ambiguous order of a board of supervisors wherein the following language is used:

. and, until an unequivocal surrender by the Board of Supervisors of the right of the public to the road, the owner of the fee had no right to close it.

(56 Miss. at 26)

Hatch does not hold that an order of the board of supervisors is the only means of unequivocally surrendering the public right to use a road. Admittedly, such an order would be an unequivocal and simple answer to the loss of public character. However, protracted non-use of a road by the public has the capability of ripening into an unequivocal surrender of its public character without a formal order of closure by a board of supervisors or the highway commission.

In Picayune Wood Products Co. v. Alexander Mfg. Co., 227 Miss. 593, 86 So.2d 480 (1956), a controversy between private litigants, we held:

. the appellant does contend that a road can be closed only by an order of the board of supervisors. . . . But under the authorities mentioned above a road may be abandoned by the county and the traveling public without an order of the board of supervisors; and the right which the county has in the roadway may be extinguished by abandonment and nonuser for the statutory period of ten years.

(227 Miss. at 603, 86 So.2d at 483)

‡ ‡ sfc *
. the trend of authority seems to be that mere nonuser for the period fixed by the statute of limitations for acquiring title by adverse possession affords a presumption, though not a conclusive one, of extinguishment, even in a case where no other circumstances indicating an intention to abandon appears; and if there has been in the meantime some act done by the owner of the land charged with the easement, inconsistent with or adverse to the right, a much stronger presumption of extinguishment will arise.

(227 Miss. at 604, 86 So.2d at 484)

The Court ultimately held the road in controversy was abandoned by non-use. And see Rawls v. Warren, 227 Miss. 299, 85 So.2d 914 (1956), supporting the theory of abandonment although it was decided upon a finding of a private easement. We are of the opinion the statement in Barrett, supra, which requires an order of the board of supervisors to close a road is not in accord with our previous decisions, although under its facts the proper result was reached, and is not dispositive of the present issue. Moreover, Barrett concerned private litigation while this suit is by the State against an individual, further distinguishing it. A review of the cases concerning abandonment by non-use prompts the statement that better practice would require the board of supervisors or the highway department to be made a party to abandonment suits to protect the public right to the use of a roadway.

Cook Landing Road north of the present boat docks has unequivocally lost its public character in our opinion. It was abandoned by formal order of the board of supervisors below mean sea level of 418 feet. Those portions of the road above 418 feet sea level eeased to be maintained by the board of supervisors and additionally, Medina admitted erecting a fence across the road north of Medina Road. These factors, closure and inundation of portions of the road, lack of maintenance for more than twenty years, and nonuser of the portions not inundated, constrain the conclusion of a clear intention to abandon. We think, therefore, the trial judge did not err in his finding that the road had lost its public character.

Appellants’ second contention is that the Medina Road constitutes an access easement which has existed throughout the years and was retained when the land was conveyed to TVA and then to the State of Mississippi. It is well established that an easement may be created by grant, implication or prescription. Logan v. McGee, 320 So.2d 792 (Miss.1975). There is no contention that an easement was created in the Medinas by grant and the record discloses insufficient evidence to establish an easement in them by prescription. In our opinion they are also precluded from an easement by implication.

In Bonelli v. Blakemore, 66 Miss. 136, 5 So. 228 (1888), we held that when a right for an easement over adjoining land exists and a conveyance is made, the easement passes, stating the principle, “If one sells to another a tract of land surrounded by other lands of the grantor, a right of way across such other land is a necessity to the enjoyment of the land granted, and is implied from the grant made; and to this extent are all the authorities.” (66 Miss. at 142, 5 So. at 230) The case concludes, “Since the way claimed by complainants is not one of necessity, and is not of a continuous nature, it did not pass by the conveyance to Duff, Green & Co., and of course has not been acquired by any of the subsequent conveyances under which the complainants derive title.” (66 Miss. at 144, 5 So. at 231). The Medina land has 1100 feet frontage on the Bill Robinson Road thereby negating the theory that the Medina Road is a way of necessity. And since there was insufficient evidence to establish an easement in the Medinas’ grantors or by them, there was no easement transferred by implication or by grant.

Lastly, appellants urge that the way was one of necessity, but as mentioned above, we are not persuaded. The early case of Pleas v. Thomas, 75 Miss. 495, 22 So. 820 (1897), correctly states the principle:

It is well-settled law that one who sells a parcel of land to another, which is wholly surrounded by the other lands of the seller, impliedly grants a right of way to the interior lot so sold over the exteri- or lands retained. . . . And when one sells interior lands surrounded in part by the other lands of the seller and in part by the lands of strangers, the implied grant of a way to the interior land exists over the exterior lands of the seller.

(75 Miss. at 500, 22 So. at 821)

However, this case, as well as that of Warwick v. Pearl River Valley Water Supply District, 246 So.2d 525 (Miss.1971), simply has no application because the Medinas’ property is not landlocked as they have several hundred feet of frontage on the Bill Robinson Road and a means of ingress and egress. Wills v. Reid, 86 Miss. 446, 38 So. 793 (1905). It would seem also that Mississippi Code Annotated section 65-7-201 (1972), Private way established, would have direct application. We conclude that the appellants’ assignments of error are without merit.

On cross-appeal the State contends the lower court erred in holding there was no proof that defendants were responsible for cutting the timber, clearing land, or erecting a fence on the state’s land. It is of course familiar law that the statutory penalty for cutting trees is highly penal and must be applied with great caution. For its award the trespass must have been wilful, or the result of negligence so gross or the indifference so real or the lack of good faith so evident as to be the equivalent of willfulness. Moore v. Boutwell, 315 So.2d 921 (Miss.1975), and Rutland v. Corley, 287 So.2d 433 (Miss.1973). The present circumstances reveal, in our opinion, an honest belief by the Medinas that they were improving a public road with the approval of the Supervisor of District One, thereby precluding the state’s claim for the statutory penalties. However, the record does reveal, and the Medinas admit, that timber was cut and a roadway partly established for which the state is entitled to actual damages.

AFFIRMED ON DIRECT APPEAL. REVERSED AND REMANDED FOR ACTUAL DAMAGES ON CROSS APPEAL.

INZER and SMITH, P. JJ., ROBERTSON, SUGG, WALKER, BROOM, LEE and BOWLING, JJ., concur.

      . Explanatory map attached.


source: Caselaw Access Project

license: Public Domain

text:
    Carolyn Riley Sharp DAVIDSON v. Raymond F. SHARP, on behalf of Rebecca D. Sharp.
    No. 50130.
    Supreme Court of Mississippi.
    Jan. 25, 1978.
    Patricia Champagne, Gulfport, for appellant.
    Before PATTERSON, C. J., and WALKER and BROOM, JJ.
   AFFIRMED.


text:
    John Henry ROSS, Jr. v. STATE of Mississippi.
    No. 50100.
    Supreme Court of Mississippi.
    Jan. 25, 1978.
    Donald B. Patterson, Brookhaven, John P. Price, McComb, for appellant.
    A. F. Summer, Atty. Gen. by Robert D. Findley, Sp. Asst. Atty. Gen., Jackson, for appellee.
    Before INZER, P. J., SUGG and WALKER, JJ.
   AFFIRMED.

PATTERSON, C. J., SMITH, P. J., and ROBERTSON, BROOM, LEE and BOWLING, JJ., concur.


author: WALKER, Justice,

text:
    Will D. WINDHAM v. Cecil Ruth Windham BLAKENEY.
    No. 49873.
    Supreme Court of Mississippi.
    Feb. 1, 1978.

      Ronald N. Ashley, Jackson, for appellant.
    E. Howard Eaton, Taylorsville, for appel-lee.
    Before INZER, P. J., and SUGG and WALKER, JJ.
   WALKER, Justice,

for the Court:

This is an appeal from a decree of the Chancery Court of the First Judicial District of Hinds County, Mississippi, wherein appellant was found to be $10,000 in arrears in child support payments allegedly due under a South Carolina decree of divorce.

The appellee, Cecil Ruth Windham Blake-ney and the appellant, Will D. Windham, were married in Taylorsville, Mississippi, on September 6, 1954. During the period of said marriage there were two children born: Michelle Windham born November 28,1956, and Charles Randall Windham born April 14, 1958. The bonds of matrimony were wholly dissolved by decree of divorce in the County Court of Charleston, South Carolina, on 'May 26, 1964. The divorce decree provided that the appellant was to pay $100 per month for each child or $200 per month total child support and further that the appellant was to pay attorney’s fees. Appellant paid the monthly installments until March of 1970, at which time he retired from the United States Navy. Subsequent to that date appellant refused to make any more payments. Appellee demanded payment of the appellant and the appellant refused to pay.

Appellee filed her bill of complaint for child support in March, 1973, praying that the South Carolina decree be enforced in this State and that defendant be ordered to pay the amount in arrears and future child support. After several false starts, a hearing was finally held on June 28, 1976, in Hinds County Chancery Court, after which a decree was entered that found appellant to be in arrears in the amount of $10,000, and ordered that he pay appellee that sum plus $100 per month thereafter for the support of the one remaining minor child.

Appellant’s first assignment of error is that the court should not have granted appellee the relief sought in that the South Carolina decree may be retroactively modified by the South Carolina court as to otherwise accrued payments of child support, and therefore said decree is not a final decree subject to enforcement in Mississippi. It appears to be the law in South Carolina that decrees granting alimony and child support “. . . even though they be deemed final when rendered, . . . are subject to modification on a proper showing of altered financial circumstances. And, this modification may operate prospectively as well as retroactively with reference to installments.” (Emphasis added). Johnson v. Johnson, 196 S.C. 474, 13 S.E.2d 593 (1941). In Gallant v. Gallant, 154 Miss. 832, 123 So. 883 (1929), this Court held that the alimony decree of a Louisiana court was one which could be annulled, varied or modified by the Louisiana court and therefore was not enforceable in Mississippi under the full faith and credit clause of the United States Constitution. See generally Bunkley & Morse’s Amis Divorce and Separation in Mississippi § 6.15 (1957).

Appellee attempts to avoid the effect of Gallant by arguing that the South Carolina rule as to modification of past due installments is operative only in cases where the wife seeks to have the husband held in contempt of court. However, an examination of Ex parte Jeter, 193 S.C. 278, 8 S.E.2d 490 (1940) does not indicate that the South Carolina Supreme Court intended to limit its ruling in any way. The holding was broadly based upon the inherent power of an equity court “. . .to make such changes in the amount of alimony originally granted by the Court for a wife’s support and separate maintenance, as the altered conditions of the parties may show to be equitable and necessary . . . (8 S.E.2d at 492.) Because the decree of the South Carolina court in the case at bar was modifiable as to past due child support payments and future payments, we hold that said decree is not enforceable in Mississippi under the full faith and credit clause of the United States Constitution.

Appellee next contends that even if the South Carolina decree is not entitled to full faith and credit, it should be enforced under the doctrine of comity. Comity has been defined as follows:

The principle in accordance with which the courts of one state or jurisdiction will give effect to the laws and judicial decisions of another, not as a matter of obligation, but out of deference and respect. (Black’s Law Dictionary (4th ed. 1968)).

Under the doctrine of comity, the forum state applies its own remedies and enforcement procedures to rights existing by virtue of foreign substantive law. Floyd v. Vicksburg Cooperage, 156 Miss. 567, 126 So. 395 (1930). In this case, the rights of the parties existing by virtue of South Carolina law include the right of appellant to present his case for modification of unpaid accrued installments in any action brought on the original decree by appellee. See Ex parte Jeter, supra. Thus, in order for the Chancery Court of Hinds County to apply the substantive law of South Carolina in this proceeding to establish the judgment here, it would have to modify the South Carolina decree if the evidence should so warrant. However, we adhere to the general rule that a decree or judgment of one jurisdiction may not be changed, altered, or modified by a court of a foreign jurisdiction. 21 C.J.S. Courts § 552 (1940); see also Gallant v. Gallant, supra. Therefore, since the substantive law of South Carolina is not capable of being applied by the Chancery Court of Hinds County, we are of the opinion that the lower court erred in reducing the foreign decree to a domestic judgment.

We would point out that since the parties, including the minor child, now reside in this State, that the appellee may file a petition as provided under Mississippi Code Annotated section 93-11-65 (1972) for the support and maintenance of said child. See also Schneider v. Schneider, 155 Miss. 621, 125 So. 91 (1930).

The judgment of the lower court is therefore reversed and the bill of complaint dismissed.

REVERSED AND RENDERED.

PATTERSON, C. J., INZER and SMITH, P. JJ., and ROBERTSON, SUGG, BROOM, LEE and BOWLING, JJ., concur.


author: SMITH, Presiding Justice,

text:
    James E. NEALY v. STATE of Mississippi.
    No. 50165.
    Supreme Court of Mississippi.
    Feb. 1, 1978.

      Richard E. Burdine, Columbus, for appellant.
    A. F. Summer, Atty. Gen. by Wayne Snuggs, Sp. Asst. Atty. Gen., Jackson, for appellee.
    Before SMITH, ROBERTSON and LEE, JJ.
   SMITH, Presiding Justice,

for the Court:

James E. Nealy, Wiley Ewing, Jr., and T. L. Cunningham were indicted for capital murder. Nealy was tried separately, and, following his conviction, was sentenced to life imprisonment. He appeals.

The facts and circumstances reflected by the record and relied upon by the State may be summarized as follows:

At about 9:00 on the evening of January 13, 1976, three men robbed the store of Leo Davis. In the course of the robbery they killed Davis. According to testimony of witnesses for the State, these men were Nealy, Ewing and Cunningham. Cunningham entered the store first and engaged the attention of Davis by pretending to wish to make a purchase. As Davis turned away, Nealy and Ewing came in. Nealy was armed with a sawed-off shotgun and Ewing carried a knife. Nealy hit Davis across the face with the gun, knocking him to the floor, and Ewing began stabbing him with the knife. Davis managed to say “Go ahead, get what you want to get.” Thereupon Nealy hit Davis across the top of his head with the gun and Ewing cut Davis’ throat with the knife.

Ewing extracted two $100 bills from Davis’ wallet and Cunningham cleaned out the cash register. They then left the store and returned to Nealy’s automobile. They drove to a poolroom and before going in, Nealy put the two $100 bills in the right front hubcap and hid the shotgun. They went in and played a game of pool, staying there about twenty or thirty minutes. When they left, they again got in Nealy’s automobile and Nealy drove Cunningham home, then drove himself home where he got out and turned his automobile over to Ewing in order that Ewing might drive home.

Next day, in the course of their investigation of the robbery, the Clay County Sheriff and two of his deputies, accompanied by a member of the Mississippi Highway Patrol, went to Ewing’s home. Nealy was there. One of the deputies found the bloody clothes and boots Ewing had worn the night before. Ewing asked one of the officers if he would drive him down the road in his car. The officer consented, and Ewing and the officer left together and were gone for a short while. Upon their return, the officer asked Nealy if he might search the Nealy automobile. The officer testified, “I asked him, I said I’ve got some information there is money in the hubcaps of this car, do you mind me looking? He (Nealy) said, ‘No, help yourself.’ ” Whereupon the officers discovered two $100 bills in the right front hubcap of Nealy’s automobile. Ewing was arrested but, at that time, he had not implicated Nealy, and Nealy was not arrested until several days later.

Nealy assigns as error, requiring reversal, two alleged errors:

(1) The court erred in permitting the introduction of two one-hundred dollar bills, obtained as a result of an unlawful search and seizure.
(2) The court erred in refusing to force the State to disclose any deal or promise it made with the co-defendant who testified for the State.

The trial court conducted a preliminary hearing upon Nealy’s pretrial motion to suppress evidence relating to (1) the two $100 bills found in the hubcap of Nealy’s automobile and (2) two shotgun shells found on premises occupied by Nealy. At the conclusion of the hearing, the trial court sustained the motion to suppress as to the shotgun shells and overruled it as to the two $100 bills.

All of the officers present at the time and place of the search of Nealy’s automobile testified on the hearing of Nealy’s motion to suppress. All four testified that there were no threats or force employed to obtain Nealy’s consent to the search. They testified that, at the time of the search, appellant was not under arrest, (one testifying that Nealy was not then a suspect) and that he had voluntarily consented to the search of the hubcaps of his automobile.

Nealy testified in his own behalf at the hearing and denied that he had given Officer Middleton permission to search his car, saving that Middleton had not asked for permission. He also denied that Officer McNeel asked for permission to search. However, he admitted that Officer Holl-ingsworth had asked for and had been given permission to look inside the car. Nealy testified further that the officers did not force or threaten him in any way and that he had not experienced any feeling of pressure or of influence exerted upon him on account of the presence of the officers. He testified that he had not been arrested or charged with the crime at the time of the search. He also said that he was twenty-four years of age and had ten and one-half years of school.

At the time of the search, Ewing was the object of the investigation. Nealy was not arrested or a suspect. Under the totality of the circumstances the trial court’s conclusion that Nealy had consented and that his consent had been freely and voluntarily given meets the requirements prescribed by the United States Supreme Court. Schneckloth v. Bustamonte, 412 U.S. 218, 93 S.Ct. 2041, 36 L.Ed.2d 854 (1973), Cutchens v. State, 310 So.2d 273 (Miss.1975).

Nealy’s second contention is that the trial court erred “in refusing to force the State to disclose any deal or promise it made with the co-defendant (Ewing) who testified for the State.” To support this contention Nealy appears to rely upon Giglio v. United States, 405 U.S. 150, 92 S.Ct. 763, 31 L.Ed.2d 104 (1972).

In a pretrial motion styled “motion to Disclose Information” Nealy requested disclosure of the following:

What promises have been made by the District Attorney, his assistants or agents, or any other governmental official or their agents in exchange for the testimony of Wiley Ewing, at trial of this case?

The district attorney responded in writing, answering “none” to the above question as what promises had been made to Ewing for his testimony.

On cross-examination Ewing was interrogated by counsel about the matter:

Q. Have you been told, Wiley, that they would be lighter on you if you testified against Nealy?
A. No.
Q. Has your father or the man your father works for talked to you?
A. No.
Q. He hasn’t sent word to you you’d better tell the truth so they will go light on you?
A. No.
Q. Officer McNeel hasn’t told you to testify against this young man?
A. No.

Ewing was cross-examined at considerable length about an earlier confession in which he had not implicated Nealy. None of this, however, revealed any promise or improper inducement made or employed to obtain Ewing’s testimony.

There is no evidence in the record to support the contention that Ewing’s testimony implicating Nealy was the result of any promise of leniency by any representative of the State or by anyone else. Neither in Nealy’s motion for a new trial nor in the brief filed in his behalf on this appeal has it been suggested that there was or is newly discovered evidence capable of supporting the proposition that Ewing had testified falsely in stating that no promises of leniency or other inducements had been made to him.

In Pittman v. State, 350 So.2d 67 (Miss.1977), this Court had occasion to consider Giglio, supra. What was said in Pittman applies with equal force to the situation here. In Pittman this Court said:

The present case is distinguishable from Giglio in several particulars which we consider controlling.
In Giglio, an accomplice, one Taliento, was the Government’s key witness. Tal-iento had not been indicted. In Giglio, after the verdict, on the hearing of a motion for a new trial, it was established that Taliento had perjured himself in denying that he had been given any inducement to testify. The United States Supreme Court said:
Here the Government’s case depended almost entirely on Taliento’s testimony; without it there could have been no indictment and no evidence to carry the case to the jury. Taliento’s credibility as a witness was therefore an important issue in the case, and evidence of any understanding or agreement as to a future prosecution would be relevant to his credibility and the jury was entitled to know of it. (405 U.S. at 154, 92 S.Ct. at 766, 31 L.Ed.2d at 109).
Moreover, in Giglio, Taliento was vigorously cross-examined by defense counsel in an effort to discredit his testimony by showing that inducements or agreements of prosecutorial leniency had been made. The witness testified that there had been none. This was false and after the verdict it was discovered that Taliento had been promised that he would not be prosecuted if he would testify against Giglio.
In the case now before this Court, there is nothing to show or to indicate that Harrison’s testimony against Pittman was false or that he had been induced to give it by promises of leniency by prosecuting officials or by any representative of the State.
The suggestion that improper inducements were made to Harrison to obtain his testimony or that his testimony was false, in the absence of anything in the record to indicate either, amounts to no more than speculation or conjecture. No evidence was offered either before or during the trial to indicate that any such promises had been made to Harrison or that the testimony he had given against Pittman, which was uncontradicted, had been false in any particular.
In the case under consideration here, there was no motion for a new trial upon any ground. Therefore, no “newly discovered evidence” (or any other kind) was produced to show that Harrison had received promises of leniency in return for his testimony, or that his statement on the stand that he had not was false, or that his uneontradicted testimony against Harrison had been untrue in any particular.
The decision in Giglio is sound but it has no application in this case.

(350 So.2d at 69-70).

The conviction is supported by the detailed testimony of Ewing, Nealy’s co-in-dictee. Ewing is corroborated by the finding of the two $100 bills in the hubcap of Nealy’s automobile, and by the testimony of two of Nealy’s jailmates who testified that while confined with them, Nealy had told them that he had participated in the robbery and had asked their advice as to what he should do. Nealy testified that he was with Ewing and Cunningham on the night in question but said that he had not been with them when they had robbed and killed Davis. The evidence made a question of fact for the jury, it was. ample to support the verdict of guilty and its sufficiency is not challenged.

After a careful review of the record in this case we have concluded that there is no merit in either of the propositions assigned by Nealy for reversal of his conviction. Therefore, the judgment and sentence appealed from are affirmed.

AFFIRMED.

PATTERSON, C. J., INZER, P. J., and ROBERTSON, SUGG, WALKER, BROOM, LEE and BOWLING, JJ., concur.


author: INZER, Presiding Justice,

text:
    Tommy WALKER v. Frank JOHNSON and Jimmy Slay.
    No. 49824.
    Supreme Court of Mississippi.
    Feb. 1, 1978.
    A. R. Wright, Jr., Morris C. Phillips, Jr., Carthage, for appellant.
    Joe P. Barnett, Robert N. Brooks, Carthage, for appellees.
    Before INZER, P. J., and WALKER and BROOM, JJ.
   INZER, Presiding Justice,

for the Court:

This is an appeal by Tommy Walker from a judgment of the Circuit Court of Leake County dismissing his action for claim and delivery to regain possession of an automobile which he alleged was unlawfully taken from him by Jimmy Slay and retained by Frank Johnson, the appellees. We reverse and render.

It appears from the record that both Jimmy Slay and Frank Johnson were licensed used car dealers doing business in Carthage. On February 24, 1976, Tommy Walker purchased from Slay the 1966 Fairlane 500 Ford automobile and paid him $650 cash for the same. Slay, as required by Section 63-17-1, Mississippi Code 1972 Annotated, executed and delivered to Walker a bill of sale to the automobile. The bill of sale was in the statutory form and in addition thereto stated: “And for the same consideration, I hereby covenant and warrant that I am seized to the fee title to the above property and have a valid legal right to sell the same and that said property is free of all debts, liens and encumbrances whatsoever.” However, Slay did not comply with Section 63-21-33, Mississippi Code 1972 Annotated, by delivering to Walker the transfer of the assignment and warranty of title. On the same day Walker carried his bill of sale to the tax collector’s office and purchased a tag for the automobile.

Walker used the car to drive from his home in Leake County to Forest where he was employed. A few days after he purchased the car, Slay approached Walker and wanted to buy the car back, but Walker refused to sell because he had gone to the expense of repairing the transmission in the car. About a month later Slay signed an affidavit charging Walker with assault and battery and a warrant was issued by the Justice of the Peace for the arrest of Walker. While Walker was on his way home from work, a highway patrolman stopped him in Scott County and escorted him to the Leake County line where he was arrested, handcuffed, and taken to the jail in Carthage. Slay, who was with the officers, took the automobile and drove away. On March 29, 1976, Slay sold the automobile to Johnson, who was doing business as “The Trading Post.” Slay gave Johnson a bill of sale, but did not comply with the provisions of Section 63-21-33 by delivering to Johnson a transfer of title. He told Johnson that he would get a title to the car for him later.

After his arrest, Walker made bond and was released from jail and was never tried on the charge against him. When he learned that Johnson had his car he contacted an attorney who went to Johnson and informed him that the car belonged to Walker and demanded possession of the car. Johnson refused to deliver the car and then set about to get a certificate of title to the automobile. It appears from the record that Slay had purchased the car from Travis Harkins, but never received an assignment from Harkins. After this controversy arose, Harkins executed an assignment of title to Slay who in turn executed an assignment of title to Johnson, which was backdated to the date of the purchase by Johnson. Johnson testified that when he purchased the car he knew nothing about the claim of Walker to the automobile. Slay did not appear and it seems that his whereabouts were unknown at the time of the trial.

The case was tried by the Circuit Judge without the intervention of a jury, and he held that since Johnson secured a certificate of title to the car his title to the car was superior to that of Walker. Therefore, Walker’s cause of action was dismissed.

The question to be decided on this appeal is whether the trial court was in error in holding the Johnson claim to the automobile was superior to that of Walker, who had the automobile stolen from him by Slay.

It is clear from this record that when Slay sold the automobile to Walker for valuable consideration and executed a bill of sale to it, he no longer had any right, title, and interest in the automobile although the purchaser did not receive a certificate of title to the car. When Slay had Walker arrested and took the car, he did not acquire any title to the car. It follows that when he sold the car to Johnson he could not convey any title to the ear. Under the provisions of Section 75-2-403, Mississippi Code 1972 Annotated, a purchaser of goods acquires all the title which the transferor had or had power to transfer, and a person with a voidable title has power to transfer a good title to a good-faith purchaser for value. However, even though the sale of the property is made to a bona fide purchaser for value, if it is stolen property, the person from whom it was stolen is not divested of his title.

Appellee Johnson contends that Section 63-21-31 applies in this case and this section requires the owner to execute an assignment and warranty of title to the transferee and then requires the transferee to execute an application for a new certificate of title. By the terms of this section a transfer is not effective until one complies with its provisions. This section relied on by appellee applies to persons other than licensed dealers. The controlling section in this case is Section 63-21-33 which applies to dealers. Slay was a licensed dealer and so was Johnson and as such each was a designated agent of the comptroller. Section 63-21-9(b) puts the burden upon the dealer who sells any used vehicle to furnish the person an application for title to the vehicle and to forward the same to the Motor Vehicle Comptroller. Section 63-21-33 requires a dealer who has purchased a vehicle from another to execute the assignment and warranty of title by a dealer and to cause the same to be forwarded to the comptroller along with the purchaser’s application for a new certificate. Slay did not perform his duties as required in this regard, but did give Walker a bill of sale as set out. When Slay had Walker arrested on a charge for which he was never tried and took the automobile without the consent of Walker, he acquired no title to the vehicle. His actions according to the facts in this record clearly show that Slay stole the automobile from Walker. This being true, Slay had no title to the car when he sold it to Johnson, therefore, Johnson acquired no title to the vehicle.

Johnson claims that he is an innocent purchaser for value with a certificate of title to the automobile and therefore was entitled to retain possession of the same. At the time Johnson purchased the automobile he did not receive a certificate of title, and being a licensed dealer he was well aware of the title law. It was only after Johnson found out that Slay had sold the car to Walker and had wrongfully taken the car, did he set about to secure a certificate of title. The fact that he did later acquire a certificate of title does not defeat the right of Walker to the possession of the automobile. At the time Johnson received that certificate of title he was not an innocent purchaser for value.

For the reasons stated, this case is reversed and a judgment entered here in favor of Walker.

REVERSED AND RENDERED.

PATTERSON, C. J., SMITH and ROBERTSON, P. JJ., and SUGG, WALKER, BROOM, LEE and BOWLING, JJ., concur.


author: PATTERSON, Chief Justice, SUGG, Justice, BROOM, Justice,

text:
    Christine GILLARD and Marietta Green, Defendants-Appellants, v. GREAT SOUTHERN MORTGAGE & LOAN CORPORATION, Plaintiff-Appellee.
    No. 49859.
    Supreme Court of Mississippi.
    Feb. 1, 1978.

      Kenneth Mayfield, Tupelo, for defendants-appellants.
    C. Ashley Atkinson, McComb, for plaintiff-appellee.
    Before PATTERSON, C. J., and ROBERTSON and BROOM, JJ.
   PATTERSON, Chief Justice,

for the Court:

This appeal concerns the jurisdiction of the County Court of Pike County.

Great Southern Mortgage & Loan Corporation, a nonresident corporation domiciled in Oakdale, Louisiana, brought suit in the County Court of Pike County, Mississippi, against Christine Gillard, an adult resident citizen of Calhoun County, Mississippi, and Marietta Green, an adult resident citizen of Marshall County, Mississippi. It alleged the defendants executed a promissory note to the plaintiff and were in default, wherefore judgment was demanded for the sum due, interest and attorney’s fees.

Christine Gillard was personally served with process in Calhoun County and Marietta Green was personally served with process in Marshall County. Neither of the defendants responded to the process and a default judgment was entered against them in Pike County. Motivated by writs of garnishment based upon the judgment, they moved, subsequent to the adjournment of court, to vacate the judgment which was sustained by the court.

The judgment creditor, Great Southern Mortgage & Loan Corporation, appealed to the circuit court which reversed the county court, reinstating its original default judgment. Gillard and Green appeal to this Court.

The sole issue is whether the county court had venue jurisdiction of the appellants based upon their failure to respond to personal service of process. In deciding it we note the cause of action did not accrue, the defendants do not reside, nor was process served in Pike County. Additionally, it is conceded the suit was filed in such county for the convenience of the appellee and its attorney.

The appellants rely upon Bryant v. Lovitt, 231 Miss. 736, 97 So.2d 730 (1957), for reversal. There Bryant contended he had the right to be sued in the county of his residence and household as provided by Mississippi Code Annotated section 1433 (1942) [§ 11-11-3, Miss.Code Ann. (1972)]. We upheld this contention and rejected the argument that Bryant had waived venue by not moving for a change of venue to the county of his residence. It appears to us that Bryant is probably in point by analogy. However, there is a difference in the facts inasmuch as Bryant contended he did not have personal notice of the suit until writs of garnishment issued on the judgment to his employer. The returns in Bryant indicate his wife was served with process which he attacked averring she had refused to accept it. No issue of this nature presently exists because the defendants were personally served with process.

Nevertheless, the appellee concedes that Bryant, supra, must be overruled if it is to prevail. The argument is advanced that Bryant has been substantially eroded by Wofford v. Cities Service Oil Co., 236 So.2d 743 (Miss.1970), and Leake County Coop (AAL) v. Dependents of Barrett, 226 So.2d 608 (Miss.1969), leaving its holding in doubt.

In Leake County Coop (AAL) the issue of venue jurisdiction was raised for the first time after the petitioners had participated in a workmen’s compensation hearing, an appeal to the circuit court and to this Court. We held the Circuit Court of Leake County had jurisdiction on appeal from the Workmen’s Compensation Commission although it initially lacked venue because the injury occurred in another county. After stating the difference between jurisdiction and venue, “[jjurisdiction connotes the power to decide a case on the merits, while venue connotes locality, the place where the suit should be heard,” we held the movants had not seasonably filed for a change of venue and thereby waived it. We relied upon Mississippi Code Annotated section 1441 (1942) [§ 11-11-17, Miss.Code Ann. (1972)], the general statute for the decision:

such action shall not be dismissed because of such lack of proper venue, but on objection on the part of the defendant shall, by the court, be transferred to the venue to which it belongs. (226 So.2d at 615)

We are of the opinion Leake County Coop (AAL) is not in point for the reason the present appellants did not participate in the lower court trial as was the case in the decision cited.

In Wofford, supra, a suit in Hinds County against a resident of such county and two residents of Chickasaw County, process was served in conformity with Mississippi Code Annotated section 1847 (1942) [§ 13-3-9, Miss.Code Ann. (1972)], the statute for process upon joint defendants of different counties. The Chickasaw County defendants were personally served, but summons and alias summons for the Hinds County defendant were returned “not found.” Thereafter, default judgment was taken against the Chickasaw County defendants.

Over a year later the judgment debtors moved to set the judgment aside because the Hinds County court lacked venue jurisdiction. The motion was overruled and when the case reached this Court, we held it was not filed within the time frame of Mississippi Code Annotated section 1433 (1942) [§ 11-11-3, Miss.Code Ann. (1972)]. We relied upon Ainsworth v. Blakeney, 232 Miss. 297, 98 So.2d 880 (1957), and King v. Ainsworth, 225 Miss. 248, 83 So.2d 97 (1955), for the decision. These cases reannounced the principle that venue is waived where a defendant does not timely apply for a transfer. A review of these cases again reveals the defendants participated in the trials and to that extent both differ from the facts in Wofford and this case.

In Wofford the Chickasaw County defendants did not participate in the trial, but they were served with process pursuant to the statute for joint defendants of different counties and more importantly, there is no evidence or suggestion the declaration was filed in Hinds County to invoke the jurisdiction of its courts to the detriment of the Chickasaw County defendants. To the contrary, it appears to be a suit brought in good faith in a county wherein one of the joint defendants resided. It differs from the present suit which was filed in Pike County with full knowledge that neither of the defendants resided or would be found there. In our opinion, neither Leake County Coop (AAL), supra, nor Wofford, supra, is dispositive of this appeal.

In our research we have not found any case in which the plaintiff has intentionally filed suit in a county not the residence of the defendant or where it was known he would not be found for the purpose of obtaining venue jurisdiction contingent upon the defendant’s failure to apply for transfer to the county of his residence. Bryant, supra, in our judgment, is not a satisfactory basis for this decision because its process was served upon the wife of the defendant, creating an issue not presently relevant and, as mentioned, neither Wofford, supra, nor Leake County Coop (AAL), supra, is dispositive of the issue.

Additionally, in deciding the issue, we do not determine the county court erred in its reliance upon Bryant v. Lovitt, 231 Miss. 736, 97 So.2d 730 (1957), in vacating the default judgment nor that the circuit court erred in reinstating it under Wofford v. Cities Service Oil Co., 236 So.2d 743 (Miss.1970). The divergent judgments are the result of differing opinions of this Court which have arisen through the years, leaving their meanings in doubt. Neither do we hold or imply that this suit was not brought in good faith because an interpretation, not illogical, of our decisions lends considerable support to plaintiff’s position.

In our opinion Mississippi Code Annotated section 11-11-3 (1972), applicable to the county courts through Section 11-9-1, must be construed to determine the legislative intention concerning venue. It provides in pertinent part:

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, or in the county where the cause of action may occur or accrue except where otherwise provided, . If a citizen resident in this state shall be sued in any action, not local, out of the county of his household and residence, . the venue shall be changed, on his application, before the jury is impaneled, to the county of his household and residence . . . . (Emphasis added.)

The section’s major theme is that civil actions shall be brought in the county in which a defendant may be found or the cause of action occurs or accrues. The defendant’s right to be sued in accord with the statutory terms has long been construed to be valuable and substantial, not a mere technical right. Jefferson v. Magee, 205 So.2d 281 (Miss.1967); Crosby v. Robertson, 243 Miss. 420, 137 So.2d 916 (1962); Long v. Patterson, 198 Miss. 554, 22 So.2d 490 (1945), and Trolio v. Nichols, 160 Miss. 611, 133 So. 207 (1931). The question actually presented is whether a plaintiff may intentionally bypass a mandate of the statute in order to invoke a later provision therein. We think it cannot because statutes must be construed in their entirety giving consideration to the words used as well as the purpose the legislature sought to accomplish by the enactment. Aikerson v. State, 274 So.2d 124 (Miss.1973).

A study of the entire statute makes apparent, we believe, that the legislative purpose was to establish venue of a defendant in the county where he might be found, usually the county of his residence, or where the cause of action occurs or accrues. It also recognizes that mistakes will inevitably be made and that suits will be erroneously, but in good faith, filed in counties where the defendant cannot be found and where no cause of action arose. In that event the statute provides a saving clause designed to protect the defendant’s right by mandating transfer of the suit to the county of his residence upon his application. Thus the defendant’s valuable and substantial right is protected, first, by the statutory command that suit be brought in the county where he might be found or where the cause occurs or accrues, but if mistakenly sued elsewhere, provision is made for transfer. To hold otherwise would overlook a salient rule of construction that all parts of a statute are to be considered together and given effect if possible. Mississippi Public Service Comm’n. v. City of Jackson, 328 So.2d 656 (Miss.1976), and McCaffrey’s Food Market, Inc. v. Mississippi Milk Comm’n, 227 So.2d 459 (Miss.1969), wherein we stated:

. it is also a rule of law that in its effort to construe a statute the courts must seek to ascertain the legislative intent of the statute in question as a whole, taking in consideration each provision of the statute on the entire subject. .

(227 So.2d at 463)

It is also the duty of a court to support a construction which would purge the legislative purpose of any invalidity, absurdity or unjust inequality. Quitman County v. Turner, 196 Miss. 746, 18 So.2d 122 (1944), and the cases cited therein. We do not think the legislature intended by Section 11-11-3 to authorize a plaintiff in a suit not local to bring it in any county court within the borders of the state conditioned upon the defendant’s failure to respond to process for venue. To do so would permit a mischievous result of great inconvenience and expense to citizen defendants. In Bryant, supra, we stated:

Permission to plaintiffs to select the situs of personal actions, not local, would often work great hardship and disadvantage to defendants. Conceivably the suit might be filed in this state three hundred miles from the county of the residence of such a defendant, necessitating large outlay of money for travel and other expenses, to defend the suit with resulting inability of such defendant to procure attendance of witnesses at the trial.

(231 Miss. at 742, 97 So.2d at 731)

We conclude the words of the statute, “venue shall be changed, on his application, before the jury is impaneled, to the county of his household and residence,” have no application in the absence of bona fide and reasonable effort by a plaintiff to file his suit in the county where a defendant or one of them may be found or in the county where the cause of action may occur or accrue. This conclusion also has application to Section 11-11-17, the general statute on venue, since it must be read in pari materia with Section 11-11-3, the more specific statute.

The judgment of the circuit court is reversed and the judgment of the county court dismissing the default judgment is reinstated.

The cause was considered by a conference of the justices en banc.

REVERSED; THE COUNTY COURT JUDGMENT DISMISSING THE DEFAULT JUDGMENT IS REINSTATED.

INZER and SMITH, P. JJ., and ROBERTSON, WALKER, LEE and BOWLING, JJ., concur.

SUGG and BROOM, JJ., dissent.

SUGG, Justice,

dissenting:

I am in sympathy with the majority opinion to the extent that it attempts to halt the practice of plaintiffs filing suits in courts chosen by them without regard to the place of residence of the defendant.

However, I must dissent because sections 11-11-3 and 11-11-17 Mississippi Code Annotated (1972) plainly provide that if an action is not filed in the county where venue lies, the action may be transferred only when the defendant objects. I doubt if the legislature intended for the statutes to permit a plaintiff to choose the court in which to file an action, which is not local; nevertheless, this is the effect of the statutes. Both statutes provide for a change of venue, and section 11-11-17 contains the further provision that an action will not be dismissed for lack of venue if the court has jurisdiction of the subject matter, but will be transferred, on objection of the defendant, to the venue to which it belongs.

The cases cited in the majority and dissenting opinions demonstrate a lack of consistency in construing the statutes. Rather than attempting to distinguish conflicting statements in these cases, I would prefer for the court to forthrightly exercise its rule making power to accomplish the result desired.

In Newell v. State, 308 So.2d 71, 76 (Miss.1976) we stated:

We are keenly aware of, and measure with great respect, legislative suggestions concerning procedural rules and they will be followed unless determined to be an impediment to justice or an impingement upon the constitution. The inherent power of this Court to promulgate procedural rules emanates from the fundamental constitutional concept of the separation of powers and the vesting of judicial powers in the courts. Matthews v. State, 288 So.2d 714 (Miss.1974); Gulf Coast Drilling & Exploration Co. v. Permenter, 214 So.2d 601 (Miss.1968); and Southern Pacific Lbr. Co. v. Reynolds, 206 So.2d 334 (Miss.1968), wherein the following is stated:
. The phrase ‘judicial power’ in section 144 of the Constitution includes the power to make rules of practice and procedure not inconsistent with the Constitution, for the efficient disposition of judicial business. 206 So.2d at 335.

Clearly, under Newell, this Court has the authority to adopt a procedural rule which would accomplish the purpose of the decision today. The rule should provide that if an action is filed in a county not having venue, and is transferred to a county having venue upon the application of the defendant, the expenses of the transfer shall be borne by the plaintiff. Requiring a plaintiff to bear the expenses of a transfer when he files an action in a county not having venue, would sufficiently deter plaintiffs from filing cases in counties of his choice rather than in counties having venue. Adoption of a procedural rule would accomplish the purpose of the majority opinion in this case.

BROOM, J., joins this dissent.

BROOM, Justice,

dissenting:

Although the end result of the decision reached by the majority in this case is salutary, it was reached by resorting to judicial legislation unacceptable to me. I dissent and suggest that we should leave to the legislature its prerogative to amend our statutory law, or we should promulgate a rule, under our rule making authority, which would preclude “forum shopping” heretofore possible under our statutes.

As pointed out by the majority, Mississippi Code Annotated § 11-11-3 (1972), provides that an action such as was brought in the instant case “shall” be commenced in the county in which the defendant or any of them may be found (literal language of the statute). However, that same statute concludes by providing that when a resident defendant is sued in the wrong county his remedy is to have the venue changed “on his application.” The decision from which I dissent in effect repeals that part of § 11-11-3 which provides for change of venue “on his application,” and will encourage defendants to ignore and be unmoved by the solemnity of the process of our courts which commands them to respond.

§ 11-11-3 has been in effect for more than a hundred and twenty-five years and has been construed many times though never on identical facts. I am unwilling to reverse the ruling of the circuit judge that there was nothing wrong or impermissible in the action of a litigant (or counsel) who invoked an option as to venue legislated and established so long ago by the lawmakers who first enacted § 11-11-3. Over a century ago, Simrall, Justice, writing for the Court in Christian v. O’Neal, 46 Miss. 669, 675 (1872), stated that when sued in the wrong county the defendant should make “application” for a transfer, otherwise the court where suit is brought “could properly entertain jurisdiction and give judgment.” Similarly, Cain v. Simpson, 53 Miss. 521, 524 (1876), held that where sued in the wrong county, for failure to move for a transfer, the defendant “submits to the jurisdiction, and waives his right.” Neither of those cases has been overruled. Closely related and germane to the issue is Mississippi Code Annotated § 11-11-17 (1972), the latest statute on the subject. It does not purport to “command” or mandate where suits should be commenced but merely provides that if the court where the action is commenced has subject matter jurisdiction but lacks venue, such a suit “shall not be dismissed” (emphasis added), but be transferred to the proper venue “on objection” by the defendant. § 11-11-17 was recently discussed by Justice Gillespie (formerly Chief Justice) in King v. Ainsworth, 225 Miss. 248, 83 So.2d 97 (1955), on different facts, but states the clear meaning of the statute: “The Court could not dismiss” or even transfer the action absent any objection to venue. (Emphasis added).

Wofford v. Cities Service Oil Co., 236 So.2d 743 (Miss.1970), is our latest pronouncement on the issue raised here. There the decision written by Justice Robertson, and concurred in by four other justices (three of whom and Robertson, J., are still on the Court), stated in clear and unmistakable language that venue may be waived by failure of the defendant to object prior to entry of a default judgment. Wof-ford is said to be factually distinguishable because there a defendant resided in Hinds County, in which county the suit was brought. However, the judgment was not against the Hinds County defendant but was against other defendants only, who did not reside in and were not shown to have any connection with Hinds County. As to the Hinds County defendant, no process was served upon him and how he (without process and without entering his appearance) added to jurisdiction in Hinds County in that case is yet unexplained. Therefore, in my opinion, there is no logical factual distinction to be made between Wofford and the instant case, and any such distinction is more artificial than real. In deciding the instant case, the circuit judge relied (correctly, I think) on Wofford and demonstrated sound reasoning when he ruled:

The County Court of Pike County had no authority to dismiss the cause as section 11-11-17 of the 1972 Code provides that if the Court lacks venue jurisdiction, such action shall not be dismissed because of such lack of proper venue. .
Although the case should properly have been brought in either Calhoun County or Marshall County, the county of the residence of one of the defendants . . . , still venue may be waived by the defendants’ failure to object thereto.

Whether it is wise or unwise to permit a lawyer to go “forum shopping” and file a suit, as occurred in this case, in a county where neither litigant has any particular connection or may be found should properly be left for another branch of the government (the legislature) to deal with. The Court should not intrude into any arena other than our very own.

According to the majority, the “statutory command” of § 11-11-3 is to bring a suit in a county where a defendant may be found. Is it any less commanding where, as stated in the last sentence of the statute, “venue shall be changed on his application . . ?” I think not. Looking at § 11-11-3 alone may possibly leave doubt about the matter. The other statute, § 11-11-17, enacted ninety-two years after the enactment of § 11-11-3, has no “command” as to where a suit shall be commenced. However, it positively and clearly “commands” that the “action shall not be dismissed because of such lack of proper venue” (emphasis added), but “shall ... be transferred” to the proper venue at the instance of the defendant. Where different constructions or meanings may be attributed to any one of several statutes, the general rule is that the most recent statute will control: § 11 — 11— 17 here.

The last paragraph of the majority opinion holds, in effect, that the language in § 11-11-3, “venue shall be changed, on his application . . . ” is inoperative absent a bona fide and reasonable effort by a plaintiff to file his suit in a county where a defendant may be found. Does this language mandate trial judges to impede the management of their dockets in favor of defaulting defendants who make no response to personal service of process (as was true of both appellants herein) and conduct some sort of hearing, and have witnesses produced to establish such “bona fide and reasonable effort” on the part of the plaintiff? Must the declaration or pleading allege compliance with the newly required “bona fide and reasonable effort” ingredient of newly defined “jurisdiction”? Such an interpretation reads into the statute a requirement not even suggested or hinted by the draftsman who chose the words of the statute; also, such has never been suggested in prior decisions of the Court. The decision of this case will saddle trial judges with meticulous new burdens and thwart their efforts to cope with crowded dockets.

Another unanswered question which arises is: “What constitutes such bona fide and reasonable effort?” No doubt there will be test cases to have it judicially defined. Finally, the majority decision holds that § 11-11-17 must not apply even though it states such action “shall not be dismissed because of such lack of proper venue, but on objection . . . ” absent the new “bona fide and reasonable effort” which has now been written into the statute by this Court. The reading into § 11-11-17 of the “bona fide and reasonable effort” aspect is totally lacking in logic and is contrary to every comment on it that appears in any decision ever rendered by this Court.

The opinion discusses distance, expense, and inconvenience to which a defendant would be put in responding to process from a county remote from where the defendant may be found. It is not seen how such a “mischievous result” might occur when filing a simple motion or objection by the defendant is all that would be necessary to effectuate transfer of the cause. The “great hardship”, “disadvantage”, and “large outlay of money for travel . . ” mentioned in Bryant v. Lovitt, 231 Miss. 736, 97 So.2d 731 (1957), and quoted in the majority opinion, simply could not apply to a simple motion or objection which either defendant in the present case could have filed under § 11-11-3, or § 11-11-17, and obtained transfer of the cause.

Perhaps desirable results will be accomplished as a result of the majority decision which “put the monkey wrench” to two statutes correctly construed by a trial judge who interpreted them precisely as this Court directed in Wofford. In doing so, the Court has legislated by judicial fiat and, therefore, with all deference, I cannot concur, although I agree that § 11-11-3 and § 11-11-17 should be amended to conform to the result reached in this case. The preferable remedy would be to request the legislature to enact appropriate legislation, as we do from time to time. Rather than do what has been done, here, a much more desirable process (if we could not at least wait upon the legislature for a reasonable time, as I think we should) would be to promulgate a rule to take care of the problem. Such an action would be permissible within our inherent rule-making powers, and would be preferable to the strained interpretation a majority has placed upon the statutes. Newell v. State, 308 So.2d 71 (Miss.1975).

SUGG, J., joins in this dissent.


text:
    Helen Louise ROBINSON v. Leonard ROBINSON and Margie Robinson.
    No. 49927.
    Supreme Court of Mississippi.
    Feb. 1, 1978.
    David E. Holderfield, Glen W. Hall, Jackson, for appellant.
    Wright & Phillips, A. R. Wright, Jr., Carthage, for appellee.
   Appeal from Chancery Court, Leake County; E. G. Cortright, Chancellor.

Before SMITH, P. J., ROBERTSON and LEE, JJ., and JAMES E. BOST, Commissioner.

AFFIRMED.


text:
    Sam WASHINGTON v. STATE of Mississippi.
    No. 50260.
    Supreme Court of Mississippi.
    Feb. 1, 1978.
    Charles O. Jones, Jackson, for appellant.
    A. F. Summer, Atty. Gen. by Karen Gil-foy, Asst. Atty. Gen., Jackson, for appellee.
   Appeal from Circuit Court, Hinds County; Russel D. Moore, Judge.

Before PATTERSON, C. J., and WALKER and BROOM, JJ.

AFFIRMED.


text:
    Peggy Mae RATCLIFF et al. v. W. C. “Dunk” CROSBY et ux.
    No. 49903.
    Supreme Court of Mississippi.
    Feb. 1, 1978.
    Pickering & McKenzie, Charles W. Pickering, J. Larry Walters, Laurel, for appellants.
    Holifield & Harper, Matthew Harper, Jr., Laurel, for appellee.
   Appeal from Chancery Court, Jones County; J. Shannon Clark, Chancellor.

Before SMITH, P. J., and ROBERTSON and LEE, JJ.

AFFIRMED.


text:
    Martha J. McBRIDE v. SHAINBERG’S STORES OF MISSISSIPPI, INC.
    No. 49912.
    Supreme Court of Mississippi.
    Feb. 1, 1978.
    Eaves & Eaves, John Arthur Eaves, Jackson, for appellant.
    Daniel, Coker, Horton, Bell & Dukes, Forrest W. Stringfellow, Jackson, for appellee.
   Appeal from Circuit Court, Hinds County; Francis S. Bowling, Judge.

Before SMITH, P. J., and ROBERTSON and LEE, JJ.

AFFIRMED.


text:
    GOODYEAR SERVICE STORES v. Elverdia Roberson QUAVE.
    No. 49933.
    Supreme Court of Mississippi.
    Feb. 1, 1978.
    Megehee, Brown & Williams, Larry A. Smith, Pascagoula, for appellant.
    William B. Jones, Pascagoula, for appel-lee.
   Appeal from Circuit Court, Jackson County; Merle F. Palmer, Judge.

Before SMITH, P. J., and ROBERTSON and LEE, JJ.

AFFIRMED.


text:
    Bennie THOMAS, Jr. and Enoch Thomas v. Kenneth KELLEY.
    No. 49931.
    Supreme Court of Mississippi.
    Feb. 1, 1978.
    Peter K. Smith, Quitman, Stanford Young, Waynesboro, for appellant.
   Appeal from Circuit Court, Wayne County; Lester F. Williamson, Judge.

Snow, Covington, Temple & Watts, W. Arlo Temple, Meridian, for appellee.

Before SMITH, P. J., and ROBERTSON and LEE, JJ.

AFFIRMED.


text:
    Richard L. DuPASS v. STATE of Mississippi.
    No. 50233.
    Supreme Court of Mississippi.
    Feb. 1, 1978.
    Thomas A. Coleman, Ackerman, for appellant.
    A. F. Summer, Atty. Gen. by Wayne Snuggs, Special Asst. Atty. Gen., Jackson, for appellee.
   Appeal from Circuit Court, Choctaw County; Clarence E. Morgan, Jr., Judge.

Before SMITH, P. J., and ROBERTSON and LEE, JJ.

AFFIRMED.


text:
    Carlos FOWLER v. STATE of Mississippi.
    No. 50356.
    Supreme Court of Mississippi.
    Feb. 1, 1978.
    David R. Sparks, Tupelo, for appellant.
    A. F. Summer, Atty. Gen. by Wayne Snuggs, Sp. Asst. Atty. Gen., Jackson, for appellee.
   Appeal from Circuit Court, Lee County; Neal Biggers, Judge.

Before SMITH, P. J., and ROBERTSON and LEE, JJ.

AFFIRMED.


text:
    Billy FILES v. STATE of Mississippi.
    No. 50212.
    Supreme Court of Mississippi.
    Feb. 1, 1978.
    Thomas A. Coleman, Ackerman, for appellant.
    A. F. Summer, Atty. Gen. by Frankie Walton White, Sp. Asst. Atty. Gen., Jackson, for appellee.
   Appeal from Circuit Court, Webster County; Clarence E. Morgan, Jr., Judge.

Before PATTERSON, C. J., and ROBERTSON and BROOM, JJ.

AFFIRMED.


text:
    Shelby R. MULFORD v. STATE of Mississippi.
    No. 49655.
    Supreme Court of Mississippi.
    Feb. 1, 1978.
    Rehearing Denied Feb. 22, 1978.
    Fred L. Cooper, James R. Davis, Columbia, for appellant.
    A. F. Summer, Atty. Gen. by Billy L. Gore, Sp. Asst. Atty. Gen., Jackson, for appellee.
   Appeal from Circuit Court, Marion County; R. I. Prichard, III, Judge.

Before INZER, P. J., SUGG and LEE, JJ., and CLARENCE E. MORGAN, Jr., C.

AFFIRMED.

PATTERSON, C. J., SMITH, P. J., and ROBERTSON, WALKER, BROOM and BOWLING, JJ., concur.


text:
    Hoyt GORDON v. STATE of Mississippi.
    No. 50136.
    Supreme Court of Mississippi.
    Feb. 1, 1978.
    Roy Pitts, Meridian, for appellant.
    A. F. Summer, Atty. Gen. by Henry T. Wingate, Special Asst. Atty. Gen., Jackson, for appellee.
   Appeal from Circuit Court, Lauderdale County; Lester F. Williamson, Judge.

Before INZER, P. J., and SUGG and WALKER, JJ.

AFFIRMED.

PATTERSON, C. J., SMITH, P. J., and ROBERTSON, BROOM, LEE and BOWLING, JJ., concurring.


text:
    In the Interest of William Earl GRIFFIN.
    No. 50360.
    Supreme Court of Mississippi.
    Feb. 1, 1978.
    Edmund L. Baugh, Jr., Aberdeen, for appellant.
    A. F. Summer, Atty. Gen. by Pete J. Cajoleas, Special Asst. Atty. Gen., Jackson, for appellee.
   Appeal from Youth Court, Monroe County; Fred P. Wright, Chancellor.

Before INZER, P. J., and SUGG and WALKER, JJ.

REVERSED AND APPELLANT DISCHARGED.

PATTERSON, C. J., SMITH, P. J., and ROBERTSON, BROOM, LEE and BOWLING, JJ., concurring.


text:
    GULF NATIONAL BANK v. BRINKLEY & WEST, INC.
    No. 49977.
    Supreme Court of Mississippi.
    Feb. 8, 1978.
    Mize, Thompson & Blass, Henry F. Laird, Jr., Gulfport, for appellant.
    White & Morse, Stanford E. Morse, Jr., Estes & Blackwell, George E. Estes, Jr., Gulfport, for appellee.
   Appeal from Chancery Court, Harrison County; Frank W. Alexander, Chancellor.

Before PATTERSON, C. J., SUGG and BROOM, JJ., and JAMES ARDEN BARNETT, C.

AFFIRMED.


text:
    Laron MURRAY v. B. C. RUTH, Director of Records, Mississippi State Penitentiary.
    No. 50148.
    Supreme Court of Mississippi.
    Feb. 8, 1978.
    Laron Murray, pro se.
    A. F. Summer, Atty. Gen. by Robert D. Findley, Sp. Asst. Atty. Gen., Jackson, for appellee.
   Appeal from Circuit Court, Sunflower County; Arthur B. Clark, Judge.

Before SMITH, P. J., and ROBERTSON and LEE, JJ.

AFFIRMED.


text:
    Sudie S. WHITWORTH v. Fannie Elizabeth Jones PAYNE and Mary John Colbert and Canton Exchange Bank of Canton, Miss.
    No. 49970.
    Supreme Court of Mississippi.
    Feb. 8, 1978.
    Powell & Fancher, Joe R. Fancher, Jr., Canton, Semmes Luckett, Clarksdale, for appellant.
    Cain, Cain & Ritchey, S. R. Cain, Jr., Canton, Brunini, Grantham, Grower & Hewes, John M. Grower, William R. Wright, Jackson, for appellees.
   Appeal from Chancery Court, Madison County; E. G. Cortright, Chancellor.

Before PATTERSON, C. J., and BROOM and BOWLING, JJ.

AFFIRMED.


text:
    In re the Petition of the BOARD OF SUPERVISORS OF MONTGOMERY COUNTY, Miss., to Expunge Part of the October 1976 Montgomery County Grand Jury Report.
    No. 49969.
    Supreme Court of Mississippi.
    Feb. 8, 1978.
   Appeal from Circuit Court, Montgomery County; Clarence E. Morgan, Jr., Judge.

Liston, Crull & Gibson, William H. Liston, Winona, for appellant.

Jason Niles McNeel, Louisville, for appel-lee.

Before PATTERSON, C. J., SMITH, P. J., and BROOM, J.

AFFIRMED.


text:
    George T. ESKRIDGE v. STATE of Mississippi.
    No. 50547.
    Supreme Court of Mississippi.
    Feb. 8, 1978.
    Alma C. Campbell, Greenwood, for appellant.
    A. F. Summer, Atty. Gen. by Billy L. Gore, Sp. Asst. Atty. Gen., Jackson, for appellee.
   Appeal from Circuit Court, Grenada County; Clarence E. Morgan, Jr., Judge.

Before PATTERSON, C. J., and WALKER and LEE, JJ.

AFFIRMED.


text:
    In the Interest of Dwight Wayne BIRCHFIELD, a child.
    No. 50186.
    Supreme Court of Mississippi.
    Feb. 8, 1978.
    Ward & Ward, James M. Ward, Stark-ville, for appellant.
    A. F. Summer, Atty. Gen. by Billy L. Gore, Sp. Asst. Atty. Gen., Jackson, for appellee.
   Appeal from Youth Court, Oktibbeha County; W. W. Brand, Jr., Chancellor.

Before INZER, P. J., ROBERTSON and BOWLING, JJ., and JAMES E. BOST, C.

REVERSED AND APPELLANT DISCHARGED.

PATTERSON, C. J., SMITH, P. J., and SUGG, WALKER, BROOM AND LEE, JJ., concur.


text:
    Robert E. DeROSSETTE v. Theda M. DeROSSETTE.
    No. 49864.
    Supreme Court of Mississippi.
    Feb. 8, 1978.
    Robert W. Gee, Bullard, Campbell & Gee, Vicksburg, for appellant.
    J. Mack Varner, Vicksburg, for appellee.
   Appeal from Chancery Court, Warren County; Ernest Kellner, Chancellor.

Before PATTERSON, C. J., BROOM and LEE, JJ., and 0. GUYTON IDOM, C.

AFFIRMED IN PART AND REVERSED IN PART.

INZER and SMITH, P. JJ., and ROBERTSON, SUGG, WALKER and BOWLING, JJ., concur.


text:
    JACKSON PRODUCTION CREDIT ASSOCIATION and C. H. Lee, Trustee v. Louise M. JAMES and Thomas L. James.
    No. 49900.
    Supreme Court of Mississippi.
    Feb. 8, 1978.
    Cain, Cain & Ritchey, W. S. Cain, J. M. Ritchey, Canton, for appellants.
    Case, Montgomery & Smith-Vaniz, G. M. Case, Burke C. Murphy, Jr., Canton, for appellees.
   Appeal from Chancery Court, Madison County; E. G. Cortright, Chancellor.

Before PATTERSON, C. J., and ROBERTSON and BROOM, JJ.

AFFIRMED.

INZER and SMITH, P. JJ., and SUGG, WALKER, LEE and BOWLING, JJ., concur.


text:
    Arthur Earl KENNEY v. STATE of Mississippi.
    No. 50266.
    Supreme Court of Mississippi.
    Feb. 8, 1978.
    Brown, Alexander & Sanders, Fimist J. Alexander, Jr., Jackson, for appellant.
    A. F. Summer, Atty. Gen. by Calvin Coolidge Williams, Jr., Sp. Asst. Atty. Gen., Jackson, for appellee.
   Appeal from Circuit Court, Montgomery County; Clarence E. Morgan, Jr., Judge.

Before SMITH, P. J., and ROBERTSON and LEE, JJ.

AFFIRMED.

PATTERSON, C. J., INZER, P. J., and SUGG, WALKER, BROOM and BOWLING, JJ., concur.