Bank Of Phcebus v. Byrum

• Decision Date: 10 March 1910
• Citation: 110 Va. 708,67 S.E. 349
• Parties: BANK OF PHCEBUS v. BYRUM.
• Court: Virginia Supreme Court

67 S.E. 349

110 Va. 708

BANK OF PHCEBUS

v.BYRUM.

Supreme Court of Appeals of Virginia.

March 10, 1910.

I. Attachment (§ 25^*)—Nonresident—Ceded Territory.

Code 1904, § 15a, par. 2, provides that exclusive jurisdiction in and over any land acquir ed by the United States for military purposes shall be ceded to the United States for all purposes except the service on such sites of civil and criminal process of the courts of the state. Held, that the fact that process may be served on a defendant residing on the military reservation known as "Fortress Monroe" is not the test of the right to issue an attachment against him as a nonresident.

[Ed. Note.—For other cases, see Attachment, Dec. Dig. § 25.*]

2. Attachment (§ 25*)—-Nonresidence—Military Reservation.

Where a citizen of North Carolina enlisted as a soldier in the United States army, and was stationed in Fortress Monroe, he did not thereby acquire a residence in Virginia nor cease to be a nonresident while stationed there, so that his property was subject to attachment on that ground.

[Ed. Note.—For other cases, see Attachment, Dec. Dig. § 25.*]

Error to Circuit Court, Elizabeth City County.

Action by the Bank of Phoebus against one Byruin. From a judgment quashing an attachment, plaintiff brings error. Reversed.

W. H. Power and O. D. Batchelor, for plaintiff in error.

Sidney J. Dudley and C. Vernon Spratley, for defendant in error.

KEITH, P. The Bank of Phoebus brought an action of debt against Byrum in the circuit court of Elizabeth City county, upon a negotiable note for $589, which was due and payable, and sued out an attachment and served the same upon the Merchants' National Bank of Hampton, which had in its possession money belonging to the defendant. The defendant moved the court to quash the attachment, on the sole ground that it was sued out on false suggestion; the defendant being a resident of the state of Virginia.

Byrum was born in North Carolina and resided there continuously until 1898, when he came to Fortress Monroe and enlisted as a soldier in the army of the United States, in which service he has continued until the present time. Upon this evidence, the court, being of opinion that the defendant was a resident of Virginia, sustained the motion to quash, abated the attachment, and that judgment is before us upon a writ of error.

The territory known as "Fortress Monroe" was, by act of the General Assembly of Virginia of 1820 and a deed made in pursuance of that act, ceded and conveyed to the United States. It was acquired by the United States for military purposes, and has been and is now held for such uses and purposes.

It is provided by the Code of this state (section 15a, par. 2) that: "Exclusive jurisdiction in and over any land so acquired by the United States shall be, and the same is hereby, ceded to the United States for all purposes except the service upon such sites of all civil and criminal process of the courts of this state; but the jurisdiction so ceded shall continue no longer than the said United States shall own such lands."

The fact that process can or cannot be served upon a defendant is not the test of the right to issue an attachment against him as a nonresident.

In Shinn on Attachments, § 103, it is said: "Where one is in fact a nonresident, his property will be liable in a foreign attachment, notwithstanding the fact that the defendant may be in the state at the time it is sued out. Nor will the allegation of non-residence be defeated by the fact that the defendant is personally served. The effect of such personal service will, of course, be to give the court jurisdiction to enter a general judgment and issue an execution, not only against the property attached but generally against the defendant and all of his property." And to the same effect see Clarke v. Ward, 12 Grat. 440; Long v. Ryan, 30 Grat. 721; Didier v. Patterson, 93 Va. 541, 25 S. E. 661.

The real question here is whether or not a person born and domiciled in North Carolina, who comes to Fortress Monroe for the purpose of enlisting in the army, enlists, and remains an enlisted soldier of the United States, thereby acquires a residence in this commonwealth so as to defeat the right of a creditor to issue an attachment against him. If the power to serve a process were the test, clearly the reservation made by the state would be sufficient to cover this case; but that reservation of right...