Bean v. Bean

• Decision Date: 20 March 1933
• Docket Number: 30480
• Court: Mississippi Supreme Court
• Parties: BEAN v. BEAN et al

147 So. 306

166 Miss. 434

BEAN v. BEAN et al

No. 30480

Supreme Court of Mississippi

March 20, 1933

Division A

Suggestion Of Error Overruled May 1, 1933.

APPEAL from chancery court of Hinds county HON. V. J. STRICKER Chancellor.

Suit by Mrs. Jenny E. M. Bean against Fred A. Bean, defendant, and the Louisiana Oil Corporation, garnishee defendant. From a decree quashing attachment and dismissing the bill of complaint, complainant appeals. Reversed and remanded.

Reversed and remanded.

Alexander, Alexander & Satterfield, of Jackson, for appellant.

All requirements of the statute, Code of 1930, section 173 et seq., have been met.

The essential service of foreign attachment laws is to reach and arrest the payment of what is due and might be paid to a nonresident to the defeat of his creditors. To do it he must go to the domicile of his debtor. This is a legal necessity and considerations of situs are somewhat artificial. If not artificial, whatever of substance is with the debtor. He and he only has something in his hands. That something is the res, and gives character to the action as one in the nature of a proceeding in rem.

Railroad Company v. Lyon, 99 Miss. 186, 54 So. 728; Delta Insurance Company v. Interstate Insurance Company, 113 Miss. 542, 74 So. 420.

It is plain that the res, upon which the chancellor seems unable to place an identifying finger, is the obligation of the resident debtor or garnishee to the nonresident defendant.

Griffith's Chancery Practice, par. 484.

In an attachment in chancery against a nonresident principal debtor, a debtor of the said debtor may be garnished, that is to say may be made the co-defendant in the suit, if the principal debtor could have sued his debtor here; and the court will have jurisdiction even if the garnishee debtor was also a nonresident.

Griffith's Chancery Practice, section 484.

A nonresident complainant may avail of the statute. Freeman v. Malcom, 11 S. & M. 53; Zecharie v. Bowers, 3 S. & M. 641; Comstock v. Rayford, 1 S. & M. 423; Griffith's Chancery Practice, section 485.

Since no point has been made upon the nonresidence of the complainant here, and since we have shown that nonresident complainants may sue, there is no valid objection that could be made to the simple procedure which we have sought to follow in compliance with the statute.

Aetna Insurance Company v. Robertson, 186 Miss. 387.

We cannot, of course, get a personal judgment against a nonresident, but we do have control of any property or indebtedness belonging to him in this state.

Chicago, etc., R. R. Co. v. Sturm, 174 U.S. 710, 43 L.Ed. 1144, 1145; Railroad Company v. Lyon, 99 Miss. 186.

Green, Green & Jackson, of Jackson, for appellee, Louisiana Oil Corporation.

It was the duty of the chancery court and it is the duty, with deference, of this court to construe the statutes in question so as to uphold their constitutionality if at all possible.

Dwight v. Richardson, 12 S. & M. 325; Burnham v. Sumner, 50 Miss. 517; Virden v. Bowers, 55 Miss. 1; Beck v. Allen, 58. Miss. 143; Nugent v. Jackson, 72 Miss. 1040, 18 So. 493; Easterling Lumber Co. v. Pierce, 106 Miss. 672, 64 So. 461; Riley v. Ammon, 143 Miss. 861, 108 So. 296.

The statutes in question never contemplated the conferring of jurisdiction on the chancery court, where, as here, the complainant, the principal defendant and the garnishee defendant, were all nonresidents of the state; and, in addition the indebtedness sought to be attached was created by contract wholly made without the state, payable for duties to be performed wholly without the state, and the creditor and the debt are situated wholly without the state, and no part of the funds for the payment of said indebtedness would or could ever be within the state of Mississippi, especially, where, as here, there was never personal service of process on the nonresident defendant, the principal party sued. To hold that such jurisdiction is conferred is to say that the jurisdiction of chancery in Mississippi is co-extensive with the circumference of the earth, and that every person everywhere is amenable to its process.

The corporation here sued as "garnishee" defendant, appeared specially and moved to quash the process and dismiss the bill because of lack of jurisdiction of the chancery court. This procedure is recognized.

Advance Lumber Co. v. Bank, 86 Miss. 419, 38 So. 313.

The chancellor recognized the fundamental principle herein that the jurisdiction of chancery was based purely upon statutory enactment.

Mississippi Chancery Practice, section 483; Zecharie v. Bowers, 9 Miss. 584; Scruggs v. Blair, 44 Miss. 406; Statham v. N. Y. Life Ins. Co., 45 Miss. 581; Dollman v. Moore, 70 Miss. 267, 12 So. 23.

The very basis of jurisdiction under the statutes involved is that the thing must be within the jurisdiction of the court, else there is nothing against, or upon, which there maybe juridical action.

Griffith's Chancery Practice, section 484, page 516; Louis Werner Sawmill Co. v. Sheffield, 89 Miss. 12, 42 So. 876; Rothrock Constr. Co. v. Port Gibson Mfg. Co., 80 Miss. 517, 32 So. 116.

We submit that there is no res subject to the jurisdiction of the chancery court of Hinds county, Mississippi, and the learned chancellor so found and held.

There are three elements that must exist for the Mississippi court to have jurisdiction of the debt: (1) Nonresidence of the principal defendant; (2) The indebtedness must have been contracted under the laws of Mississippi; and (3) The place of payment must be within the state.

Bush v. Nance, 61 Miss. 237.

If the state is prohibited by the Fourteenth Amendment (and by section 14 of the Mississippi Constitution), from levying a tax on an indebtedness with a situs at the domicile of the creditor, wholly without the state, it cannot give jurisdiction to its courts for attachment purposes of such debt. The chancery court of Mississippi is supported and carried on by taxation. If it is impossible for the state to support the functions of this court by taxing the debt with a situs outside of Mississippi, it certainly cannot give that court jurisdiction over such debt, so as to support jurisdiction.

Baldwin v. Missouri, 281 U.S. 585, 74 L.Ed. 1056.

Whether it be taxation or attachment, the laws of the state cannot have an extra-territorial effect and to so construe the statute here involved would be to contravene the constitutional inhibition.

Morris & Company v. Skandinavia Insurance Co., 279 U.S. 405, 73. L.Ed. 405, 137 So. 110.

The attachment statutes contemplate that the court shall have jurisdiction of the res. The res here sought to be subjected to the process is within the state of Alabama, and was never within Mississippi. Thus, there was no jurisdiction and the lower court having so found, its decision should be affirmed.

OPINION

Cook, J.

Mrs. Jenny E. M. Bean, a resident of the state of Illinois, filed this suit by way of an attachment in the chancery court of Hinds county, Mississippi, against Fred A. Bean, a resident of the state of Alabama, as principal defendant, and the Louisiana Oil Corporation, a nonresident corporation authorized to do and doing business in the state of Mississippi, as a defendant alleged to be indebted to, and to have in its hands effects of, the said principal defendant. The bill of complaint was based upon certain alleged judgments or decrees in favor of the complainant and against the principal defendant, and set up the nonresidence of the principal defendant, and that the garnishee defendant, Louisiana Oil Corporation, had in its possession effects of, and was indebted to, the said nonresident defendant. There was personal service of process on the resident agent of the said Louisiana Oil Corporation and publication for the nonresident debtor. The Louisiana Oil Corporation, garnishee defendant, appeared specially and moved to quash the attachment and dismiss the bill of complaint, which was sustained, and from the decree entered this appeal was prosecuted.

The motion to quash with the exhibits thereto set up that the indebtedness of the Louisiana Oil Corporation to the defendant Fred A. Bean arose by reason of a contract of employment made and executed in the state of Alabama; that under said contract the said Bean was to perform certain duties for the said, corporation in the state of Alabama; that any indebtedness from the corporation to the defendant Bean was payable only by virtue of said contract between nonresidents of Mississippi; that the performance of said contract was to be wholly in the state of Alabama where the said Bean had a fixed and permanent residence; that the payment of such indebtedness to the said Bean was fixed by said contract of employment at the place of residence of said Bean in the state of Alabama; that the funds for the payment of said indebtedness were never within the state of Mississippi, and that the said Fred A. Bean had filed suit against the said corporation in a court of Jefferson county, Alabama, claiming said indebtedness; all as shown by an exemplification of the record of said suit then pending filed as an exhibit to the motion. The motion further averred that the garnishee defendant was a corporation organized under the laws of the state of Delaware, but doing business in both the states of Mississippi and Alabama, and that under the facts stated the chancery court of Hinds county, Mississippi, was without jurisdiction to require answer of the garnishee defendant, and that to require such an answer would be violative of the Fourteenth Amendment to the Constitution of the United States and section 14 of the Constitution of Mississippi. The record of the suit filed in the Alabama court against the said Louisiana Oil...