Alabama Power Co. v. Jackson

• Decision Date: 14 March 1938
• Docket Number: 33065
• Citation: 181 Miss. 691,179 So. 571
• Court: Mississippi Supreme Court
• Parties: ALABAMA POWER CO. et al. v. JACKSON

179 So. 571

181 Miss. 691

ALABAMA POWER CO. et al. v. JACKSON

No. 33065

Supreme Court of Mississippi

March 14, 1938

Division A

Suggestion Of Error Overruled May 23, 1938.

APPEAL from the chancery court of Prentiss county, HON. JAS. A FINLEY, Chancellor.

Attachment proceeding by Elvie Jackson, a minor, by his next friend against the Alabama Power Company and others. From the judgment rendered, the defendants appeal. Reversed and remanded.

Reversed and remanded.

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 F. 71; Pratt v. Denver R. R. Co., 284 F. 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 defend, ant 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 codefendant, 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 F. 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...