Summary
In Martin, the lienholder relying solely on the records believed that the lien debtor still owned the property and the creditor's lien was effective.
Summary of this case from McMillan v. AruOpinion
No. 36512.
January 12, 1948.
1. CORPORATIONS.
Motion to quash service of process by publication on non-resident defendant in attachment in chancery and dismiss suit against such defendant on ground that it was not doing business in the state and did not own land on which attachment was levied challenged the jurisdiction of court to entertain the suit but did not state grounds for quashing the publication (Code 1942, sec. 2729).
2. APPEARANCE.
Appearance by defendant, whether special or general, does not admit the jurisdiction of the court or bar defendant from raising that question.
3. ATTACHMENT.
Where ground for attachment in chancery against a non-resident debtor was ownership by debtor of land in the state, whether debtor was doing business in the state was immaterial, but the land levied on must be land of the debtor within the state in order to give the court jurisdiction of the suit (Code 1942, sec. 2729).
4. ATTACHMENT. Lis pendens.
Land which non-resident debtor had previously sold to another was subject to levy so as to give court jurisdiction of attachment in chancery against debtor, where deed was not recorded until after land was levied on by sheriff, though neither attachment creditor nor sheriff had filed lis pendens notice, since only bona fide purchasers who become such after beginning of suit or service of writ are protected by statute in absence of required notice (Code 1942, secs. 755, 758, 868, 2729).
5. ATTACHMENT. Judgment.
In attachment in chancery, no personal judgment could be rendered against non-resident defendant in absence of personal service of process or answer, but where land of defendant within the state was levied on, case should be proceeded with as one in rem and the land sold to satisfy any debt found due complainants by defendant (Code 1942, sec. 2729).
APPEAL from the Chancery Court of Clarke County.
Welch, Cooper Welch, of Laurel, for appellants.
The Adams Mercantile Company has appeared and under the law of Mississippi it is submitted that this had the effect of a general appearance and gave to the court jurisdiction of the person of Adams Mercantile Company.
McCoy v. Watson, 154 Miss. 307, 122 So. 368; Gridley, Maxon Co. v. Turner, 179 Miss. 890, 177 So. 362; Arnett v. Smith et al., 165 Miss. 53, 145 So. 638; Alabama Power Co. v. Jackson, 181 Miss. 661, 179 So. 571; Weaver Grocery Co. v. Cain Milling Co., 117 Miss. 781, 78 So. 769; Loughridge v. Bowland, 52 Miss. 546; Code of 1942, Sec. 1881.
The motion to quash the process which was sustained by the lower court was error.
Code of 1942, Sec. 1881.
At the time of the filing of the suit the appellee, Adams Mercantile Company, was the record owner of all lands which were attached in this suit and the attachment was proper.
Loughridge v. Bowland, supra; Duke v. Clark, 58 Miss. 465; Hart v. Gardner, 81 Miss. 650, 33 So. 442; Code of 1942, Secs. 868, 869, 2733.
Gillespie, Minniece Nettles, of Meridian, for appellee.
The lower court was correct in sustaining appellee's motion to quash service of process.
Alabama Power Co. v. Jackson, 181 Miss. 691, 179 So. 571; Alliance Trust Co. v. Nettleton Hardwood Co., 74 Miss. 584, 21 So. 396; Arnett v. Smith et al., 165 Miss. 53, 145 So. 638; Delta Ins. Realty Co. v. Interstate Fire Ins. Co., 113 Miss. 542, 74 So. 420; First National Bank v. Mississippi Cottonseed Products Co., 171 Miss. 282, 157 So. 349; York v. York, 187 Miss. 465, 193 So. 330; Werner Sawmill Co. v. Sheffield, 89 Miss. 12, 42 So. 876; Code of 1942, Secs. 753, 756, 758.
The motion of appellee objecting to jurisdiction did not have the effect of submitting the corporation to the jurisdiction of the court.
Item Co., Ltd., v. Shipp et al., 140 Miss. 699, 106 So. 437; Marx Bensdorf v. First Joint Stock Land Bank of New Orleans, 178 Miss. 345, 173 So. 297; North American Mortgage Co. v. Hudson et al., 176 Miss. 266, 168 So. 79; George v. Oscar Smith Sons Co., 250 F. 41; Code of 1942, Sec. 1881.
The recording statutes have no application to the case at bar.
This is an attachment in chancery under Section 2729, Code 1942. The bill of complaint alleges that the Adams Mercantile Company, a Wisconsin corporation, and R.G. Werner, a non-resident of the State, are indebted to the complainants in the sum of $5,000; that the Adams Mercantile Company owns certain described land in Clarke County and prayed that a writ of attachment be issued and levied on this land. The writ prayed for was issued on October 19, 1945, and executed by the sheriff by levying on the land on October 20, 1945, at two o'clock P.M. No lis pendens notice thereof was filed by either the complainants or the sheriff. Publication was made for Adams Mercantile Company, and Werner was personally served with process in Clarke County, Mississippi. Werner appeared and the court sustained a motion by him to quash the process against him for the reason that when it was served on him he was in Clarke County in attendance on the chancery court of that county as a witness in a case then for trial by that court, and no objection is here made to this action of the court.
The Adams Mercantile Company also appeared and filed a motion to quash the publication for it, and dismiss the suit against it, for two reasons: (1) it was not doing business in this State; and (2) that it does not own the land on which this attachment was levied. This motion was sustained and the suit against the Adams Mercantile Company was also dismissed. There was no answer to this motion, but the appellee proved, we will assume, that it was not doing business in Mississippi, and by the clerk of the chancery court of Clarke County that a deed from it to Cecil Wayne Wilson dated September 4, 1945, to the land here levied on, was filed with him for record "on the 20th day of October, A.D., 1945, at three o'clock P.M." This motion presents no ground for quashing the publication for the Adams Mercantile Company, but simply challenges the jurisdiction of the court to entertain the suit. Whether this question can be properly raised by motion is not challenged by the appellants, but they say the motion constituted such an appearance by Adams Merchantile Company as to subject it to the jurisdiction of the court. An appearance by a defendant, whether special or general, does not admit the jurisdiction of the court and does not bar a defendant from raising that question. This being an attachment in chancery under Section 2729, Code 1942, against a nonresident debtor, whether the appellee was doing business in this State is immaterial. The ground for the attachment being ownership by the debtor of land in this State, the court below was without jurisdiction of the suit unless the land here levied on answers the statute's requirement that the debtor "has lands . . . within this state." Werner Sawmill Co. v. Sheffield, 89 Miss. 12, 42 So. 876.
According to the evidence, when this land was levied on by the sheriff it had been sold prior thereto by the appellee to Cecil Wayne Wilson, but as Wilson had neglected to file his deed thereto for record until after it was levied on by the sheriff, the land was under Section 868, Code 1942, subject to the levy with the same results as if it were still owned by Adams Mercantile Company. Loughridge v. Bowland, 52 Miss. 546. This is all that Section 2729, Code 1942, requires. In other words, pro hac vice, this appellee "has lands . . . within this State."
Neither the failure of the appellants to file a lis pendens notice with the clerk of the chancery court of Clarke County, assuming, for the purpose of the argument, that Section 755, Code 1942, required such, nor the failure of the sheriff to file the notice required by Section 755 of the Code can afford the appellee any comfort for the bona fide purchasers protected by Section 758 of the Code are those who become such after the beginning of the suit or service of the writ.
In the absence of personal service of process on the appellee, or an answer by it to the bill of complaint, no personal judgment can be rendered against it, but the case should be proceeded with as one in rem, and the land sold to satisfy any debt the court may find is due the appellees by Adams Mercantile Company. The decree of the court below dismissing the case as to Adams Mercantile Company, will be reversed and the cause remanded.
Reversed and remanded.