Opinion
No. 33065.
March 14, 1938. Suggestion of Error Overruled May 23, 1938.
1. GARNISHMENT.
The words "persons in this state," as used in attachment statute giving chancery court jurisdiction of attachment suits based upon demands against a nonresident debtor and "persons in this state" indebted to nonresident debtor, mean persons residing in this state, and the mere service of process upon nonresidents who were temporarily in state did not give court jurisdiction over them in attachment suit (Code 1930, sections 173, 174).
2. CORPORATIONS.
Service of process in another county upon corporation domesticated in state did not give court jurisdiction over it in absence of process on a defendant residing in county in which suit was brought (Code 1930, section 173).
3. APPEARANCE.
A nonresident debtor in attachment suit, by appearing solely for purpose of objecting to court's jurisdiction, had same right to object as any other litigant and, by so appearing, did not submit itself to jurisdiction of court (Code 1930, sections 173, 4166).
APPEAL from the chancery court of Prentiss county. HON. JAS. A. FINLEY, Chancellor.
Martin, Turner McWhorter, of Birmingham, Ala., Wilbourn, Miller Wilbourn, of Meridian, and Eaton Eaton, of Gulfport, for appellants.
The appeal allowed is proper under Section 14, Mississippi Code 1930.
First National Bank of St. Louis v. Miss. Cottonseed Products, 171 Miss. 282, 157 So. 349; Bilbo v. Bilbo, 177 So. 772.
The appointment of the circuit clerk of Prentiss County as guardian of appellee, Elvie Jackson, is void under the facts, for lack of the jurisdiction of the court to appoint him. The minor did not reside in, nor have either real or personal property in, the county of Prentiss, Mississippi, nor does it appear that the said guardian had ever been appointed as the minor's guardian in the county of his residence, Franklin County, Alabama.
Sections 1868, 1896, 1906, 1908, 1909, Code of 1930.
The voidness of the decree appointing a guardian in this state is mentioned in order to point out that the presence of the guardian on the record as next friend adds nothing whatever to the jurisdiction of the court.
Alabama Power Company, not found doing business in Mississippi, and not actually doing business in this state, nor served with process therein, is not subject to suit in Mississippi.
Sec. 4166, Code of 1930; Arnett v. C.C. F.R. Smith, Inc., 165 Miss. 53, 145 So. 638; Walters v. Curtiss Candy Co., 159 So. 560, 172 Miss. 187; Saxony Mills v. Wagner Co., 94 Miss. 233, 47 So. 899; Goldey v. Morning News, 156 U.S. 518, 39 L.Ed. 517; Brown v. Cuba-American Jockey Club of Florida, 7 F.2d 784; Zurich v. Imperial Wheel Co., 277 Fed. 71; Pratt v. Denver R.R. Co., 284 Fed. 1008; Gaboury v. Central of Vt., 250 N.Y. 237, 165 N.E. 277.
The service in Prentiss County on appellee's brother Lloyd Jackson gave the court no jurisdiction of Alabama Power Company.
The appellee manifestly came into this state, not to acquire a residence here, but to attempt to get a Mississippi court to adjudicate a controversy between him and other citizens of Alabama, not residing or doing business in Mississippi, which controversy arose in and is governed as to liability by the laws of Alabama; and, manifestly the father and minor brother of appellee came along with him so that the minor brother might be served as a party defendant, in order to attempt to get jurisdiction in the chancery court of Prentiss County, Mississippi. There is no privity between Lloyd Jackson and Alabama Power Company.
It is clear that Alabama Power Company not only was not found doing business in Mississippi, but that it had no property in the state of Mississippi, and that no property of Alabama Power Company has been levied upon in this state.
In so far as Mississippi Power Company is concerned, it is not joined in this suit, as being jointly liable with Alabama Power Company and Lloyd Jackson, or any one else, but it is attempted to be summoned as garnishee, under Sections 173 and 174, Code 1930 of Mississippi, without being made a co-defendant.
It is undisputed that Mississippi Power Company has no property in the county of Prentiss, State of Mississippi; does no business in such county; was not found doing business in said county; and had no agent there upon whom service of process either could have been or was served. The statutory agent of Mississippi Power Company, which is itself a non-resident corporation, was served with process in Harrison County, State of Mississippi.
There was and is no territorial jurisdiction of Mississippi Power Company in the Chancery Court of Prentiss County, Mississippi. Our court has held that the residence of the statutory agent is not, as some other courts have held, in contemplation of law, in every county of the state.
American Surety Co. v. Holly Springs, 77 Miss. 428, 27 So. 612; Sanford v. Dixie Construction Co., 128 So. 887, 157 Miss. 626; Estes v. Walnut Grove Bank, 172 Miss. 499, 159 So. 104.
If the jurisdiction of the chancery court of Prentiss County can be upheld at all, it can be done solely and alone upon the theory that it is an attachment in chancery under Sections 173 and 174 of Code of 1930 of Mississippi; and that the individual defendants R.E. Clement and Arthur Finch, residents of Franklin County, Alabama, who were served with writ of garnishment while fishing at a lake in Prentiss County, Mississippi, are indebted unto Alabama Power Company; and that service of such process upon them, under the circumstances disclosed by this record, was sufficient to confer jurisdiction upon the Chancery Court of Prentiss County, Mississippi, to condemn whatever sums they might owe to the claim of the appellee against Alabama Power Company, the appellant. We contend that no such result follows, and that the Chancery Court of Prentiss County, Mississippi, is without territorial jurisdiction to proceed in this cause against Alabama Power Company, either in rem or in personam.
Sections 173 and 174, Code of 1930.
This case is unique in that no resident of Prentiss County, Mississippi, and no person doing business therein, is before the court, and the controversy did not arise there. We are not aware of any case where the plaintiff, a non-resident, was permitted to maintain his suit under the statute against another non-resident with no resident garnishee, and no property of the non-resident levied on, and no process against the non-resident alleged debtor, about a matter occurring wholly without the state.
Zecharie Kerr v. Bowers, 3 S. M. 641.
The basis of the jurisdiction of the court is statutory.
Scruggs v. Blair, 44 Miss. 406; Stratham v. N.Y.L. Ins. Co., 45 Miss. 581; Allen v. Montgomery, 48 Miss. 101; Delta Ins. Realty Co. v. Fourth National Bank in Montgomery, 137 Miss. 855, 102 So. 846.
There must be, in order to give the Chancery Court of any particular county in Mississippi jurisdiction, either: (a) A levy on lands of the non-resident or absconding debtor; or (b) A resident defendant in the county who is indebted unto, or has effects of the non-resident defendant in his possession or under his control in this state; or (c) The non-resident defendant has been found in and served with process in this state, or has entered an appearance in this state. None of the essential conditions of jurisdiction in the chancery court of Prentiss County exist in the present case.
Advance Lbr. Co. v. Laurel Natl. Bank, 86 Miss. 419, 38 So. 313; Werner Sawmill Co. v. Sheffield, 89 Miss. 12, 42 So. 876; Delta Ins. Agency v. Fourth Natl. Bank, 137 Miss. 855, 102 So. 846; Estes v. Bank of Walnut Grove, 172 Miss. 499, 159 So. 104; Clark v. L. N.R.R. Co., 130 So. 302, 158 Miss. 287.
The proceedings authorized under Sections 173 and 174, Code 1930 of Mississippi, are purely statutory and must be strictly pursued, and under a chancery attachment the party sought to be held as a garnishee, must be a co-defendant, not merely summoned in on a writ of garnishment.
Clark v. L. N.R.R. Co., 130 So. 302, 158 Miss. 287.
And such defendants, or some of them, must be, in fact, residents of the county where the suit is brought. True, there are some decisions holding that service in the county of the suit on a corporate defendant, such as a railroad found doing business in this state, who is indebted to the main defendant is sufficient. Such, for instance, is Clark v. L. N.R.R. Co., 130 So. 302, 158 Miss. 287. But, as to such cases, we submit that they appear to treat such a defendant as a resident for business purposes where such corporation has and carries on an established business in such county.
The term "resident" as applied to such necessary co-defendant, who is indebted unto the main defendant, cannot be ignored in construing the statute. It is at least required that it be given its usual and ordinary meaning.
A resident is a person having a permanent abode in a particular place, and does not include persons sojourning temporarily in a place for a particular purpose, not intending to live there after such time or purpose is accomplished.
Fry's Election Case, 71 Pa. (21 P.F. Smith) 302, 10 Am. Rep. 698; Frost v. Brisbin, 19 Wend. 11, 32 Am. Dec. 423; Ayres v. Moan, 51 N.W. 830, 34 Neb. 210, 15 L.R.A. 501; Mann v. Taylor, 43 N.W. 220, 78 Iowa 355; Brown v. Ashbough, 40 How. Prac. 200; Brisenden v. Chamberlain, 53 Fed. 307; U.S. v. Penelope, 27 Fed. Cas. 486; Town of New Haven v. Town of Middlebury, 21 A. 608, 63 Vt. 399; Meyer Bros. Drug Co. v. Fly, 105 Miss. 752, 63 So. 227; Bank of Hattiesburg v. Mollere, 118 Miss. 154, 79 So. 87; Collier v. Chamblee, 136 Miss. 257, 101 So. 372; Bowers v. Ross, 55 Miss. 213; Brown v. Crane, 69 Miss. 678, 13 So. 855; LaTourette v. McMaster, 248 U.S. 463, 63 L.Ed. 362; Morgan v. Nunes, 54 Miss. 398; Buckley v. Porter, 133 So. 215, 160 Miss. 98; Bilbo v. Bilbo, 177 So. 772.
We submit that under no interpretation, however broad and liberal, can it be rightly held that the two fishermen, Finch and Clement, were or are residents of Prentiss County, Mississippi, within the meaning of Sections 173 and 174, Code 1930 of Mississippi, so as to give jurisdiction in this case.
On general principles, even had Finch and Clement been made co-defendants, they could not be validly served with original or garnishment process, if enticed into the state for the purpose.
Saxony Mills v. Wagner, 94 Miss. 233, 47 So. 899; Nicholson v. G.M. N.R.R. Co., 177 Miss. 844, 172 So. 306.
The courts of Alabama do not recognize such a garnishment proceeding as that here involved.
L. N.R.R. Co. v. McCarthy, 195 Ala. 152, 70 So. 91.
Comity does not require Mississippi courts in a similar situation to exercise jurisdiction to subject by garnishment proceedings debts of Finch and Clement to Alabama Power Company growing out of their contract for electric service made and to be performed in Alabama.
Weitzel v. Weitzel, 27 Ariz. 121, 230 P. 1107.
The filing of the motion to quash and dismiss, challenging the territorial jurisdiction of the Chancery Court of Prentiss County, Mississippi, did not waive jurisdiction of the court.
Nicholson v. G.M. N.R.R. Co., 117 Miss. 844, 172 So. 306; Turner v. Williams, 162 Miss. 258, 139 So. 606; Amett v. Smith, 165 Miss. 53, 145 So. 638; Miss. Cent. R.R. Co. v. Calhoun, 140 Miss. 289, 105 So. 519; Grenada Bank v. Petty, 174 Miss. 415, 164 So. 316; First Natl. Bank v. Cottonseed Products Corp., 157 So. 349, 171 Miss. 282.
Jas. A. Cunningham, of Booneville, for appellee.
Learned counsel for appellants seek to overthrow the findings of the Chancellor and the overruling of their motion to dismiss this cause on several grounds, and not a single one of these grounds lead to any objective established by the law.
They undertake to attack the findings and decree of the Chancellor on the ground that both the principal defendants, the Alabama Power Company and Lloyd Jackson, were at that time non-residents of the State of Mississippi. An examination of Bean v. Bean, 147 So. 306, and Clark v. L. N.R. Co., 130 So. 302, would have averted the incumbrance of this consideration with that issue.
They undertake to overthrow the findings and decree of the Chancellor on the ground that the garnishees found in Prentiss County, Mississippi, were non-residents of the State of Mississippi notwithstanding they admit that these non-residents were found in Prentiss County, Mississippi, and served with process.
Bean v. Bean, 147 So. 306; Clark v. L. N.R. Co., 130 So. 302; Eaton v. Hattiesburg Auto Sales Co., 117 So. 535.
It is the contention of the appellants that the Alabama Power Company since it is not organized to do business in the State of Mississippi and since it has no agents or employees in the State of Mississippi upon whom service of process may be had, that it is immune from the intendment of Sections 173 and 174 of the Annotated Code of Mississippi, 1930, on the subject of attachments in chancery. These very facts go to bring it more clearly and fully under the scope and intendment of the above sections. It was an issue in Clark v. L. N.R. Co., 130 So. 302, while the above sections could apply in such an instance as that that it could not apply where the foreign corporation had agents and were doing business in the State of Mississippi, but the court en banc settled all that fully and finally and left this contention without vestige of support, and so was it fully adjudicated afterwards in Bean v. Bean, 147 So. 306.
There are two principal non-resident defendants in this cause, viz: Lloyd Jackson, who was found and served with personal process in Prentiss County, Mississippi, as aforesaid, and the Alabama Power Company, whose effects were garnished, and while no jurisdiction of the person had been acquired, it came right into court to quash the process and protest the jurisdiction and to tell the court so, and is in court heels and neck.
Sec. 2999, Code of 1930; McCoy v. Watson, 122 So. 368; Batson Hatten Lbr. Co. v. McDowell, 131 So. 880; Arnett v. Smith, 142 So. 478, 145 So. 638; Fireman's Fund Ins. Co. v. Cole, 152 So. 872.
The determining question of the venue and jurisdiction of defendants in rem in attachment of chancery is determinable, first, by the language of the statute which is absolutely clear. And in the case of Bean v. Bean, 147 So. 306, we might go back to the question of whether Finch and Clement could have been sued in Prentiss County, Mississippi, as non-residents and taking the statute for it the court would have had jurisdiction if they were a necessary party because while they did not live in the county, "they could be found in the county for service of process."
The non-resident defendant garnishees, Clement and Finch, had come over the state line and joined a fishing party at a large lake in eastern Prentiss County and while in the county were found and served with personal process as garnishee defendants in this cause. Learned appellants try to draw deductions from the fact that they were in the county on a fishing trip. This misses the mark on any legal target I have seen set up in any legal forum. They undertake to conclude from the fact that one of these lawyers on this fishing party afterwards employed to make his answer a lawyer who also happened to be on the fishing party and who happened to be his brother, but who is neither alleged nor in any way shown to be connected in any way with complainant's law suit or to have any interest whatever in it. The appellants undertake to assume fraud, in the next place, from the very fact that Lloyd Jackson was found and served with process in Prentiss County, Mississippi, and emphasize the fact that he was with his father in Prentiss County, Mississippi. In the next place, they undertake to establish fraud out of the fact that counsel for the complainant made known to the sheriff where he could find the defendants for service of process, that the sheriff testified further that it was the universal rule in his county and under his administration for the attorneys having process issued for their clients to give him information where he could find the parties, which proved to be a very unusual stretch of the imagination of learned counsel in an effort to establish fraud.
It was held by our court out of respect this court pays to the comity due citizens of other states in Hunt et al. v. Gardner, 112 So. 7, that a non-resident has the same right under the laws of attachment in Mississippi as do resident citizens.
This is an appeal to settle the principles of the case and is an attachment in chancery under section 173, Code of 1930.
The bill of complaint was filed by the appellee, a minor residing in Franklin county, Ala., by a next friend, and the defendants thereto are the Alabama Power Company, a corporation organized under the laws of the state of Maine, and Lloyd Jackson, a minor residing in Franklin county, Ala. The bill then alleges that Erastus Clement, L.J. Hester, Arthur Finch, W.J. Wilson, and the Mississippi Power Company, a corporation organized under the laws of Maine, but which is domesticated in the state of Mississippi and doing business therein, having its office at Gulfport, and which has appointed L.J. Erwin as its agent for the service of process who can be found in Harrison county, Miss., are indebted to the Alabama Power Company. Process was served personally in Prentiss county, Miss., on Lloyd Jackson, Arthur Finch, and Erastus Clement, and on Erwin, for the Mississippi Power Company, in Harrison county, Miss. The bill alleges that the appellee was injured in Alabama by the concurring negligence of the Alabama Power Company and Lloyd Jackson.
Clement appeared and moved to dismiss the case as to him for the reason that he did not reside in Mississippi but in Franklin county, Ala., is engaged in no business in Mississippi, and has no property therein. Arthur Finch answered the bill admitting an indebtedness of $45 to the Alabama Power Company. The Alabama Power Company appeared by motion "specially and solely for the purpose of objecting to the jurisdiction of the court to proceed in this matter as against this defendant," from which the following appears: The Alabama Power Company is a Maine corporation not engaged in business in Mississippi or having any property therein; that Lloyd Jackson is a brother of the appellee; that he together with Finch and Clement were induced to come into Prentiss county, Miss., for the purpose of there obtaining service of process on them. The motion contains other allegations not necessary to be set forth. The Mississippi Power Company filed a motion setting forth practically what appears in the motion of the Alabama Power Company, and in addition that it was a Maine corporation qualified to do business in Mississippi but not domesticated therein. Oral proof was heard on these three motions and they were overruled, whereupon this appeal was granted.
It appears from this evidence that Finch and Clement live in Alabama, were invited into Mississippi for a temporary fishing expedition, and immediately upon their arrival therein were served with process herein. There was evidence also intended to prove that this invitation was extended to them in the interest of the appellee solely in order that they might be served with process in this state.
The appellants' two main contentions are: (1) This suit will not lie for the reason that none of the defendants reside in Mississippi; and (2) that the coming into Mississippi of Finch and Clement was for the fraudulent purpose of enabling the court to acquire jurisdiction of the suit. The conclusion we have reached as to the first makes it unnecessary to consider the second. The question is: Must the codefendant of a nonresident debtor be a resident of this state in order for the court to obtain jurisdiction under section 173, Code of 1930? The provision of that section is: "The chancery court shall have jurisdiction of attachment suits based upon demands . . . for the recovery of damages . . . arising exdelicto against any non-resident, absent or absconding debtor . . . or against any such debtor and persons in this state who have in their hands effects of, or are indebted to, such non-resident, absent or absconding debtor." It will be observed that the persons who are indebted to the non-resident debtor must be "in this state." Finch and Clement were in the state when they were served with process. The appellants say that the words "persons in this state" mean, not persons temporarily within the state, but actual residents thereof. What these words mean seems to be made clear by section 174 of the Code, which reads as follows: "When a bill shall be filed for an attachment of the effects of a non-resident, absent or absconding debtor in the hands of persons in this state, or of the indebtedness of the defendant in this state to such non-resident, absent or absconding debtor, it shall be sufficient to bind such effects or indebtedness, that the summons for the defendant resident in this state shall have stated in or endorsed upon it the nature and object of the suit, and that it is to subject the effects in the hands of the resident defendant, and the indebtedness of such defendant to the non-resident, absent or absconding debtor, to the demand of the complainant; or, instead of such statement on the summons, a copy of the bill may be served with the summons, and shall bind the effects or indebtedness from the time of such service."
It will be observed that this section designates the person "in this state" referred to in section 173 as "the defendant resident in this state" and as "the resident defendant." This seems to be a clear legislative definition of the words "persons in this state" in section 173 as persons residing in this state. We have been referred to no case where it was necessary for the court to draw a distinction between persons temporarily in this state and persons residing therein, but beginning with Comstock v. Rayford, 1 Smedes M. 423, 40 Am. Dec. 102, the court has said that in order for jurisdiction to arise in this class of cases there must be "at least two parties defendants, one of whom must reside in this State, and the other be an absentee." See comment on this case in Zecharie v. Bowers, 3 Smedes M. 641. In Delta Insurance Realty Co. v. Fire Insurance Company, 113 Miss. 542, 74 So. 420, 421, the court said: "The basis of the jurisdiction of the chancery court in this case is statutory; and the court has no jurisdiction under the statute unless the following facts exist, viz., the absence of the debtor, the presence here of effects in the hands of resident persons belonging to him, or debts due to him by resident persons, or his having lands or tenements in this state," which was quoted with approval in Delta Ins. Realty Agency v. Fourth National Bank, 137 Miss. 855, 102 So. 846.
From this it necessarily follows that as Finch and Clement are not residents of this state no jurisdiction was here acquired by the service of process on them.
We will assume that the Mississippi Power Company is a resident of this state within the meaning of the statute, nevertheless the service of process on it conferred no jurisdiction on the court below in the absence of process on a defendant residing in Prentiss county. American Surety Co. v. Holly Springs, 77 Miss. 428, 27 So. 612; Estes v. Bank of Walnut Grove et al., 172 Miss. 499, 159 So. 104.
But the appellee says that by appearing herein the Alabama Power Company submitted itself to the jurisdiction of the court under the provision of section 173, Code of 1930, which reads as follows: "The court shall give a decree in personam against such non-resident, absent or absconding debtor if summons has been personally served upon him, or if he has entered an appearance." As that company was not doing business in this state, it was not subject to suit therein, section 4166, Code of 1930, except under the provisions of section 173 of that code. When that company appeared herein it had the same rights that any other litigant would have, one of which is to object to the jurisdiction of the court, and if the court was without jurisdiction, to obtain the dismissal of the suit. Arnett v. Smith, 165 Miss. 53, 145 So. 638. We are not here concerned with and express no opinion on what the result here would be if it appeared that the court had jurisdiction of the local debtors.
Reversed and remanded.