BEFORE WALKER, PRATHER AND SULLIVAN
SULLIVAN, JUSTICE, FOR THE COURT:
This case presents an issue of the interpretation of our statutes and the Mississippi Rules of Civil Procedure as they apply to the sometimes troublesome issue of venue.
The State Department of Public Welfare, under the authority of Mississippi Code Annotated 43-19-31 (Supp. 1984) (child support unit procedure), and Mississippi Code Annotated 93-9-9 (1972) (bastardy procedure), filed an action in the Chancery Court of Lowndes County against Otis Lee Belk alleged to be a Lowndes County resident. The suit sought to declare Belk the father of an illegitimate child and to order him to support that child. Subsequent events were to show that Belk was and always had been a resident of Clay County.
On September 15, 1982, service of process was had upon Belk by the sheriff of Clay County, Mississippi. Belk made no response, and on January 3, 1983, an entry of default was made against him by the Lowndes County Chancery Clerk. On February 1, 1983, the chancellor granted a default judgment declaring Belk the natural father of the child and ordering him to pay child support of $100.00 per month.
On May 30, 1983, the department moved to cite Belk Belk for contempt as no support had ever been paid.
On July 28, 1983, Belk filed a motion to dismiss the contempt and the underlying default judgment of paternity and support on the theory that venue under the paternity statute, Mississippi Code Annotated 93-9-17 (1972) was in Clay County and therefore the Lowndes County judgment was void.
The department sought a summary judgment that Belk had waived venue (his right to be sued in Clay County) when he neither responded to the action nor objected to the venue in Lowndes County.
After a hearing, the chancellor overruled Belk's motion to dismiss and granted the motion of the Department of Public Welfare for a summary judgment that Belk had waived venue by his failure to timely object.
In his opinion, the chancellor found that under
93-9-17 Belk had a right to be sued only in Clay County. The chancellor then found that this case was controlled by the Mississippi Rules of Civil Procedure and that Rule 82(d) Miss. R. Civ. P. adopted the dissent in Gillard v. Great Southern Mortgage and Loan Association, 354 So. 2d 794 (Miss. 1978). Therefore, based upon Rule 82(d), Belk's proper remedy, in vindication of his venue right, was to timely object to the improper venue and move to transfer to Clay County at the cost of the Welfare Department.
Treating the motion to dismiss as an objection to venue, the chancellor then found that it was not timely filed and that venue had been waived.
On appeal, Belk contends that the chancellor has overruled Gillard and repealed Mississippi Code Annotated 93-9-17, which provides in pertinent part:
An action under 93-9-1 - 93-9-49 may be brought in the county where the alleged father is present or has property; or in the county where the mother resides; or in the county where the child resides. However, if the father resides or is domiciled in this state, the action must be brought in the county where the father resides.
Belk argues that Rule 82(d) merely replaces Mississippi Code Annotated 11-11-17 (Supp. 1984), and adds to it that the plaintiff will bear the burden of transfer expenses in the event the plaintiff brought an action that might properly have been filed in more than one county in the wrong county. Furthermore, Rule 82(d) does not take effect until the defendant objects to the improper venue. Belk then argues that Mississippi Code Annotated 93-9-17 is not listed in Appendix B of the Miss. R. Civ. P. as having been supplanted by those rules. He contends that 93-9-17 specifically provides mandatory ...