Wyeth Hardware & Manufacturing Co. v. H. F. Lang & Co.

• Decision Date: 05 March 1895
• Parties: Wyeth Hardware & Manufacturing Company, Plaintiff in Error, v. H. F. Lang & Company
• Court: Missouri Supreme Court

29 S.W. 1010

127 Mo. 242

Wyeth Hardware & Manufacturing Company, Plaintiff in Error, v. H. F. Lang & Company

Supreme Court of Missouri, Second Division

March 5, 1895

Certified from Kansas City Court of Appeals.

Affirmed.

Johnson & Wilson and Geo. N. Elliott for plaintiff in error.

(1) Where a court has jurisdiction of the parties, injunction will lie against them to prevent the annulment of the laws of its own state by the action of any one of the parties outside of the state. Railroad v. Sharritt, 43 Kan. 375; Cole v. Cunningham, 133 U.S. 107; Needham v Thayer, 147 Mass. 536; 3 Am. and Eng. Encyclopedia of Law, p. 523, and note; 8 Am. and Eng. Encyclopedia of Law pp. 1254, 1255. (2) Comity and public policy can not require of the courts of Missouri a deference and respect to the judgment of a Kansas court which they shall not show to a domestic judgment. It is not necessary to cite the authorities in Missouri to the effect that the collection of a void domestic judgment may be restrained by a court of equity. The Kansas court never acquired jurisdiction to render judgment in this case and its whole proceeding is a nullity. Todd v. Railroad, 33 Mo.App. 110; Keating v. Refrigerator Co., 32 Mo.App. 293; Fielder v. Jessup, 24 Mo.App. 91; Railroad v. Maltby, 34 Kan. 125; Railroad v. Sharritt, 43 Kan. 475; Osgood v. Maguire, 61 N.Y. 524; Williams v. Ingersol, 89 N.Y. 508; Wright v. Railroad, 19 Neb. 175; Drake v. Railroad, 69 Mich. 168; Baylies v. Houghton, 15 Vt. 631. (3) The rule that a finding of a court, as to its own jurisdiction in a cause, is conclusive or res judicata is limited to domestic judgments. In the case of the judgment of a sister state, want of jurisdiction may always be shown against it, and a finding or recital of such jurisdiction in the record of the cause will not prevent inquiry into the question of such jurisdiction. Crone v. Dawson, 19 Mo.App. 214; Matson v. Field, 10 Mo. 103; Marks v. Fore, 51 Mo. 74; Eager v. Stover, 59 Mo. 88; Barlow v. Steel, 65 Mo. 619; Napton v. Leaton, 71 Mo. 358; Railroad v. Sharritt, 43 Kan. 375; Thorn v. Salmonson, 37 Kan. 441; Litowich v. Litowich, 19 Kan. 455; Pennywit v. Foote, 27 Ohio St. 618; Thompson v. Whitman, 18 Wall. 457; Cole v. Cunningham, 133 U.S. 107; Renier v. Hurlbut, 50 N.W. 783; Ins. Co. v. Company, 19 S.W. 615; 3 Am. and Eng. Encyclopedia of Law, p. 521; Black on Judgments, secs. 275, 289, 376, 835, 897 to 901, and 918, 919, 923; Freeman on Judgments, sec. 588 et seq.; 12 Am. and Eng. Encyclopedia of Law, p. 1480, et seq. (4) A judgment rendered without jurisdiction of the person or subject-matter is absolutely void and may be attacked at any time in a collateral proceeding. A judgment in rem foreign to the situs of the res will be held of no obligation. Barlow v. Steel, 65 Mo. 619; Napton v. Leaton, 71 Mo. 366; Carr v. Lewis Coal Co., 96 Mo. 155; Hope v. Blair, 105 Mo. 85; Bigelow on Estoppel [2 Ed.], pp. 21-25; Black on Judgments, sec. 813; Story on Conflict of Laws, secs. 589-592; 3 Am. and Eng. Encyclopedia of Law, pp. 528, 529. (5) A nonresident can not be garnished, unless he has property of the defendant in his possession, or is bound to pay his money in the state where garnished. The situs of a debt is the domicile of the creditor, or the place where by the terms of the contract, it is payable. The situs of the debt determines the jurisdiction. Keeting v. Refrigerator Co., 32 Mo.App. 293; Renier v. Hurlbut, 50 N.W. 783; 21 Central Law Journal, 435; Brown on Jurisdiction, sec. 150, and note; Dicey on Domicile, 37, 264; Story on Conflict of Laws, sec. 400a.

Henry Wollman and Alexander New for defendant in error.

(1) The contention of plaintiff in error is unsound, viz.: that a debt can not be garnished at a place where he lives and where service can be had upon him, but only at the place where his creditor lives and where no service can be had on the debtor who is to be garnished. Tingley v. Bateman, 10 Mass. 343; Plimpton v. Bigelow, 93 N.Y. 592. There is but one place where a garnishment can be brought and that is where the debtor lives and service on him can be obtained. Company v. Thompson, 31 Kan. 195; Railroad v. Crow, 102 Ill. 258; Berry v. Davis, 13 S.W. 979. (2) Injunction is not the proper remedy in any event; the rule being that court may grant injunctions for the purpose of protecting citizens of the state from evasions of the laws of the state, but for no other purpose. Cole v. Cunningham, 133 U.S. 107; 1 High on Injunctions [3 Ed.], sec. 107.

OPINION

Burgess, J.

This is an injunctive proceeding, instituted by plaintiff to enjoin and restrain defendants from prosecuting suit against it in the state of Kansas by attachment, and the garnishment of debts due it by various of their customers and debtors in that state, the plaintiff and defendants being residents of this state. From a judgment for defendants on demurrer to plaintiff's petition, plaintiff took the case to the Kansas City court of appeals by writ of error, where the judgment of the circuit court was affirmed in an opinion by Smith, P. J. The case was then certified to this court because of a conflict of the opinion with the decisions of the St. Louis court of appeals in Keating v. Refrigerator Co., 32 Mo.App. 293; Bank v. Wickham, 23 Mo.App. 663; Fielder v. Jessup, 24 Mo.App. 91. The opinion in this case is reported in 54 Mo.App. 147.

The statement of facts and that part of the opinion necessary to a disposition of the case by this court are as follows:

"The petition in this case, which is for an injunction, alleged that both plaintiff and defendant were business corporations organized and existing under the statutes of this state.

"It was further alleged that the defendant had sued the plaintiff by attachment in one of the courts of the state of Kansas, and had procured the process of garnishment in said suit to be served upon certain debtors of the plaintiff, who were its customers and had become indebted to it for merchandise sold by it to them in this state, where such indebtedness, by the terms of the sale of such merchandise, for which it was incurred, was made payable; that the plaintiff here, who was the defendant in the attachment suit, was notified thereof by publication, and that judgment had been severally pronounced against the defendant and the garnishees therein. The petition fails to disclose the nature of the claim upon which the attachment proceedings were grounded. It appears that the plaintiff is a solvent corporation and that the defendants are about to take steps to compel by execution the garnishees to satisfy the amount of the judgments against them; that the garnishees, who are plaintiff's customers, are in great danger of having to pay their indebtedness to plaintiff twice, which would frustrate the trade relations between the former and the latter to the great injury of the latter, etc. The prayer was that defendants be enjoined and restrained from enforcing and collecting the judgments against plaintiffs and the garnishees, etc.

"The defendant interposed a demurrer to the petition on the ground that it did not state facts sufficient to constitute a cause of action. The court sustained the demurrer, and, the plaintiff electing to abide by its petition, judgment was given accordingly. * * *.

"The plaintiff's insistence is that, the proceedings of the Kansas court are void for want of jurisdiction for the reason that the debts garnished had no situs in that state and that, consequently, they were not liable to be attached there. Contracts respecting personal property and debts are now universally treated as having no situs or locality; and they follow the owner in point of right. They are deemed to be in the place and are disposed of by the law of the domicile of the owner wherever in point of fact they may be situate in accordance with the maxim mobilia non habent situm. Story on Conflict of Laws, sections 362, 399; State Tax on Foreign Bonds, 15 Wall. 300, 21 L.Ed. 179; Renier v. Hurlbut, 50 N.W. 783; Wallace v. McConnell, 13 Pet. 136; Railroad v. Gomila, 132 U.S. 478, 33 L.Ed. 400, 10 S.Ct. 155; Bank v. Rollen, 99 Mass. 313; Trowbridge v. Means, 5 Ark. 135. It has been ruled in effect that a debt without reference to where payable is deemed attached to the person of the owner so as to have its situs at his domicile, yet this fiction always yields to laws for attaching the property of a nonresident, because such laws necessarily assume that the property has a situs distinct from the owner's domicile. Wherever the...