Baltimore & O. R. R. Co. v. Gallahue's Adm'rs

• Decision Date: 11 September 1855
• Citation: 53 Va. 655
• Court: Virginia Supreme Court
• Parties: BALT. & OHIO R. R. CO. v. GALLAHUE'S adm'rs.

53 Va. 655

BALT. & OHIO R. R. CO. v. GALLAHUE'S adm'rs.

Supreme Court of Appeals of Virginia.

September 11, 1855

1. The Baltimore and Ohio railroad company is a corporation of the state of Virginia; and although its principal office is in Maryland, and its principal officer resides there, it may be sued in Virginia on contracts made here.^[a1]

2. A corporation may be summoned and proceeded against as a garnishee, upon proceedings under the Code, ch. 151, § 2, p 600.^[a1]

3. When the word person is used in a statute, corporations as well as natural persons, are included, for civil purposes.^[a1]

4. When a corporation is proceeded against as a garnishee, its answer is to be received in the only mode in which a corporation can answer, under its corporate seal.

5. It seems that the statute in relation to attachments at law refers to debts due from the garnishee to the defendant at the time of the service of the process upon the garnishee.^[a1]

6. QUÆ RE: Whether the statute operates at law upon debts which, though due at the service of the attachment upon the garnishee, are not then payable?

7. The answer of a garnishee speaks of debts due from him to the defendant at the date of the service of the attachment; the jury impanneled to try the question whether the garnishee had disclosed all the debts due from him to the defendant, render their verdict, that the garnishee did not state all the debts which he owed to the defendant at a subsequent specified day and afterwards; but that at such subsequent specified day and afterwards he owed the defendant enough to pay the plaintiff's debt. The verdict is no reply to the answer and should be set aside.

8. A railroad company having been summoned as a garnishee, and a jury having been impanneled to try whether it has made a full disclosure of its indebtedness to the defendant in the action, the statements of a division engineer to a third person in relation to the indebtedness of the company to the defendant, are not competent evidence; it not appearing that said engineer was the agent of the company having any authority on this subject, or that at the time of making the statements he was engaged as agent about the business referred to, so as make his statements part of the transaction, and explaining the nature thereof.

On the 14th of January 1852, the intestate of the defendants in error instituted an action of assumpsit against Patrick and F. C. Crowley, in the Circuit court of Marion county; and on the same day they sued out an attachment against the estate of the debtors under the provisions of the Code, ch. 151, § 2, p. 600, with an endorsement directing the sheriff to summon the Baltimore and Ohio railroad company as garnishee. On the same day the sheriff returned that he had summoned the plaintiff in error, by delivering a copy of the attachment to James L. Randolph, agent of said company, and a resident of said county, at the company's office in the town of Fairmont, Marion county; there being no president, director or other chief officer within his county on whom he could serve the same.

On the 18th of May 1852, the defendants in the court below appeared by their counsel, and confessed a judgment for one thousand and sixty-six dollars and seventy-nine cents, with interest from the 14th of January 1852 until paid. The company also appeared by its attorney, and waived publication; and the cause was continued as to it.

At the October term 1852, a motion was made by the company to discharge it from answering to said summons as garnishee upon the ground that a corporation is not liable as garnishee under the attachment laws of the state of Virginia in the form of proceedings in this cause; which motion the court overruled, and decided that the corporation was bound to answer.

At the May term 1853, the company filed its answer as garnishee, by which it was averred that there are in its hands a certain sum that will be due to Patrick Crowley on his signing a certain release according to the requirements of a contract filed with the answer; that said money is a final estimate for the work done on said contract. That it owed Frederick C Crowley nothing subject to said attachment; nor was there any other moneys in the hands of the company at the time of the service of said attachment, only as above stated.

The plaintiff in the court below thereupon suggested that the garnishee had not fully disclosed the debts due by it to, or effects in its hands of, the defendants; and the court ordered a jury to be impanneled to enquire as to such debts and effects.

At a subsequent term a jury was impanneled, and found that the company as garnishee has not fully disclosed the debts due by it to, or effects in its hands of, the said P. and F. C. Crowley; and that there was a sufficient amount due from said company on the 18th day of May 1852, and also afterwards, to the said P. and F. C. Crowley to satisfy the plaintiff's judgment rendered on the 18th day of May 1852, against them in this cause. And the court upon this finding rendered judgment against the company.

During the trial the company excepted to a decision of the court permitting the statements set forth in the bill of exceptions, made by James L. Randolph, a division engineer of the company, to go in evidence to the jury. This statement was, that there was enough in the hands of the company to pay the Gallahue debt, and they would have to pay it in consequence of the attachment. This was stated in reply to an enquiry made by the witness as to the prospect of securing another debt due by the Crowleys to another person.

After the verdict, the company moved for a new trial, which was refused; and the company again excepted; and applied to this court for a supersedeas, which was allowed.

A. Hunter, for the appellant.

There was no counsel for the appellees.

ALLEN, P. after stating the case, proceeded:

The first question arising upon the foregoing statement is, whether a corporation is liable as a garnishee under the attachment law. In the argument here, however, the counsel of the company contended, that no suit whatever could be maintained against this corporation in the courts of Virginia: First, because it is a foreign corporation, and therefore not liable to be sued without the jurisdiction of the state which created it; and second, because no mode is provided by our law for the service of process upon it.

The first ground it seems to me is settled by the act of March 8th, 1827, entitled an act to confirm a law passed at the present session of the general assembly of Maryland, entitled an act to incorporate the Baltimore and Ohio railroad company. The preamble recites that whereas an act has passed the legislature of Maryland, entitled an act to incorporate the Baltimore and Ohio railroad company, in the following words and figures, viz: The act of incorporation is then set out, conferring a corporate name, with all the powers, rights and privileges which other corporate bodies may lawfully do for the purposes mentioned in the said act, and providing that by that name it should be capable of purchasing, holding, selling and conveying property; and may sue and be sued. And after thus reciting the Maryland act of incorporation, the Virginia law proceeds to enact, " that the same rights and privileges shall be and are hereby granted to the aforesaid company within the territory of Virginia, as are granted to them within the territory of Maryland; the said company shall be subject to the same pains, penalties and obligations as are imposed by said act, and the same rights, privileges and immunities which are reserved to the state of Maryland or to the citizens thereof, are hereby reserved to the state of Virginia and her citizens."

The company under this law is a Virginia corporation, and its powers within the territory of Virginia are derived from the grant contained in the Virginia law. The act of Maryland incorporated the subscribers to the capital stock, their successors and assigns, by the name designated; and the Virginia act in effect re-enacts the Maryland law in all essential particulars; thereby erecting the company into a Virginia corporation within her territory. If liable to be sued in Maryland, the same liability attaches to it in Virginia. It is judicially known to the court that the road traverses the territory of Virginia to a greater extent than it does through the state of Maryland. Throughout its whole course vast expenditures would be necessary in the construction, preservation and working of the road, innumerable contracts would be entered into, controversies would necessarily arise out of the contracts, acts and omissions of the company and its agents; and it would be a startling proposition if in all such cases citizens of Virginia and others, should be denied all remedy in her courts for causes of action arising under contracts and acts entered into or done within her territory; and should be turned over to the courts and laws of a sister state to seek for redress. Such a construction would give the company almost entire immunity for its contracts and acts over most of the road, and would exempt its property in the territory of Virginia from all liability to its creditors: For process of execution from the courts of Maryland could not avail in Virginia.

The subsequent legislation of the state shows that the legislature has uniformly treated it as a Virginia corporation, exercising the same controlling power over it as over other corporations deriving their existence from the laws of Virginia. By the act of March 1847, Sess. Acts, p 86, the company was authorized to complete the road through the territory of Virginia over a route thereby prescribed; and by the 6th section of this...