Aldridge v. First Nat. Bk. of Birmingham

• Decision Date: 21 November 1932
• Docket Number: 30012
• Court: Mississippi Supreme Court
• Parties: ALDRIDGE et al. v. FIRST NAT. BK. OF BIRMINGHAM

144 So. 469

165 Miss. 1

ALDRIDGE et al. v. FIRST NAT. BK. OF BIRMINGHAM

No. 30012

Supreme Court of Mississippi

November 21, 1932

(In Banc.)

1. BANKS AND BANKING. Writ of attachment, issued and levied at commencement of suit, on realty belonging to defendant national bank, held properly quashed (12 U.S.C. A., sec. 91.)

Rev St. U.S., sec. 5242 (12 U.S.C. A., sec. 91) provides in part that "no attachment... shall be issued against such association (a national bank) or its property before final judgment in any suit, action, or proceeding, in any state county or municipal court."

2 COURTS.

Court may acquire right to proceed with action at law or suit in equity, if same is within its general jurisdiction, as against person of defendant, by service of process, or by procedure against property of defendant within court's jurisdiction.

3 COURTS.

Jurisdiction of court to proceed with suit to enforce claim against nonresident owner of property, depends on seizure of property, or its equivalent.

4. COURTS. Where realty of nonresident defendant was not seized court held without jurisdiction of suit against defendant for breach of contract to sell realty (Const. 1890, sec. 159).

Complainants brought suit against the defendant national bank for damages for breach of contract to sell realty. The bill of complaint prayed for process including a writ of attachment to be levied on described realty owned by the defendant, and to subject such realty to the payment of any judgment that might be obtained. The writ of attachment was issued and levied, but under Rev. St. U.S., sec. 5242 (12 U.S.C. A., sec. 91), was improperly issued and therefore quashed. The defendant was a nonresident national bank, and the court had not acquired personal jurisdiction over it.

HON. J. L. WILLIAMS, Chancellor.

APPEAL from chancery court of Sunflower county, HON. J. L. WILLIAMS, Chancellor.

Suit by C. H. Aldridge and others against the First National. Bank of Birmingham. From a decree sustaining a motion to quash the writ of attachment, and dismissing the bill of complaint, the complainants appeal. Affirmed.

Affirmed.

Moody & Johnson, of Indianola, and O. S. Cantwell, of Sunflower, for appellants.

The general rule undoubtedly is that a court of equity will not lend its aid to enforce a legal demand until there has been a judgment at law, and in some cases, an execution thereunder, with a return of nulla bona. But the rule never was of universal application, and was limited by the reason upon which it rested. It would be a surprising condition of affairs if a non-resident debtor owning property in this state to resident here could never have been compelled to pay his debts by the courts of this state exercising their common-law jurisdiction. The authorities are numerous that, under such circumstances, resort may be had to equity in the first instance.

Dollman v. Moore, 70 Miss. 267, 12 So. 23; Farrar v. Haselden, 9 Rich. Eq. 331; Gordon v. Warfield, 21 So. 151-152-3.

The attachment in chancery statute did not create any new remedy. As pointed out in Dollman v. Moore, 70 Miss. 267, 12 So. 23, 19 L.R.A. 222, it did no more than give distinct expression to that which had been recognized as being within chancery jurisdiction from the earliest times in this country, namely, when a debtor is absent from this state, and has property or effects here which cannot be effectively reached at law, chancery would give relief. It was never required that a litigant here should go to a foreign jurisdiction to pursue his debtor, nor take the risk that property or effects here would presently be sold or removed by the absent debtor. The rule was based upon that dominant principle that when there is no full, adequate and complete remedy at law, chancery would give relief; but there is no such case as that here, or anything which even approaches it in substance and in fact.

Clark v. Louisville & N. R. Co., 130 So. 302, 311.

In the case now before the court, the jurisdiction of the lower court, as a court of equity, was invoked not by virtue of the statute, but by virtue of the constitution as applied in the Dollman case. The prayer for the attachment is not to vest jurisdiction in the court, but merely to create a lien on the property from the time the bill was filed. Hence the attachment could be, as it was, discharged and the jurisdiction in no wise affected.

When a court of equity has, or has conferred on it, jurisdiction of the res, that jurisdiction is acquired by bill in chancery, and not by a preliminary seizure of the res, by attachment or otherwise, unless it is otherwise provided.

Every state owes protection to its own citizens; and when non-residents deal with them, it is a legitimate and just exercise of its authority to hold and appropriate any property owned by such non-residents to satisfy the claims of its citizens.

Pennoyer v. Neff, 24 Law Ed. 565.

The object of attachment as it is now regulated by usage and by statute, is to give the creditor, upon the commencement of his suit, a lien upon the real estate of his debtor. . . . It constitutes a real lien, which can be made available upon condition that he shall recover a judgment in that suit.

Sanders v. Columbus Life, etc., Insurance Company, 43 Miss. 583, 593.

The chancery court, which was established by the Constitution, has, as a court of equity, inherent jurisdiction to subject property in this state belonging to a nonresident to the payment of his debts.

Dollman v. Moore, 70 Miss. 267; Gordon v. Warfield, 74 Miss. 553.

The action being essentially one in rem or quasi in rem, and the courts of the state where the land is situated having jurisdiction of the subject-matter of the suit, the the jurisdiction of defendant, so far as to enable the court to determine the extent of his title to the land, may be acquired by any reasonable method of imparting notice provided by statute.

51 C. J. 204-5.

Suits of this nature are not technically suits in rem, nor are they strictly speaking, in personam, but, being against the person in respect of the res, wherein the decree does not extend beyond the property in controversy, these proceedings acquire a status that may be characterized as suit quasi in rem.

McDaniel v. McElvy, 51 A.L.R. 731, 746; 51 C. J. 141, sec. 12; Louisville & N. R. Co. v. Western U. Tel. Co., 58 Law Ed. 1356.

Quasi in rem is a term applied to proceedings which are not strictly and purely in rem, but are brought against defendant personally, although the real object is to deal with particular property or to subject property to the discharge of claims asserted.

1 C. J. 929, sec. 6.

An action to enforce specific performance of a contract to convey land is of this nature, especially against a nonresident, and courts of equity have jurisdiction when there is not an adequate and complete remedy at law.

36 Cyc. 543.

Jurisdiction is acquired in one of two modes; first, as against the person of the defendant, by the service of process; or second, by a procedure against the property of the defendant, within the jurisdiction of the court. In the latter case the defendant is not personally bound by the judgment, beyond the property in question. And it is immaterial whether the proceeding against the property be by an attachment or bill in chancery.

Boswell v. Otis, 13 Law Ed. 164.

While the general rule in regard to jurisdiction in rem requires the actual seizure and possession of the res by the officer of the court, such jurisdiction may be acquired by acts which are of equivalent import, and which stand for and represent the dominion of the court over the thing, and, in effect, subject it to the control of the court.

Cooper v. Reynolds, 19 Law Ed. 932.

The cases in which it has been held that a seizure or its equivalent an attachment or execution upon the property, is necessary to give jurisdiction, are those where a general creditor seeks to establish and foreclose a lien thereby acquired.

Roller v. Holly, 44 Law Ed. 523.

The suit in the instant case is no more an action in rem than is a suit to remove clouds from title to land, or vice versa.

There is a general statute providing for process in suits against a non-resident.

Section 2972, Code of 1930.

Where the statute specifies certain classes of cases which may be brought against nonresidents, such specification doubtless operates as a restriction and limitation upon the power of the court; but where the power is a general one, we know of no principle upon which we can say that it applies to one class of cases, and not to another.

Roller v. Holly, 44 L.Ed. 520.

This is not a suit for the recovery of specific property, or to enforce a lien thereon, but it is a suit to subject specific property of a nonresident, which is located in this state, to payment of the debt owing to the complainant, which suit is authorized and for which process is provided and may be termed a suit quasi in rem as in a suit to enforce specific performance of contracts to convey land, or remove clouds from titles.

As a general rule, jurisdiction of the res is acquired by bill in chancery and not by seizure, by attachment, or otherwise, as in suits to enforce the specific performance of contracts to convey land and remove clouds from the title thereon, even though such suits are in personam, and not in rem. That jurisdiction is acquired in suits against nonresidents under the general statute, providing for process by publication etc., which is applicable to all suits against nonresidents unless there is a statute applicable to a particular suit, as for instance in suits to confirm tax titles and other titles to real estate, which is a limitation of the general statute as to particular suits. ...