Blair & Anderson v. Kansas City

• Decision Date: 30 January 1899
• Citation: 76 Miss. 478,24 So. 879
• Parties: BLAIR & ANDERSON v. KANSAS CITY, MEMPHIS & BIRMINGHAM RAILROAD COMPANY
• Court: Mississippi Supreme Court

24 So. 879

76 Miss. 478

BLAIR & ANDERSON v. KANSAS CITY, MEMPHIS & BIRMINGHAM RAILROAD COMPANY

Supreme Court of Mississippi

January 30, 1899

November 1898

FROM the chancery court of Lee county, HON. BAXTER MCFARLAND Chancellor.

Blair &amp Anderson, lawyers, appellants, were complainants in the court below; Joy L. Torrey and others, nonresidents of Mississippi and the railroad company, were defendants there. The suit was an attachment in chancery. Defendant, Torrey, a colonel of a Wyoming cavalry regiment during the recent war with Spain and his soldiers, were being carried by the appellee railroad company through this state, the trains running in two or more sections; the first section having stopped at Tupelo, the second ran into it, and killed and injured several members of the regiment. Col. Torrey, on behalf of himself and the other nonresident defendants, wounded and injured soldiers, employed the appellants, Blair & Anderson, to institute suit for each of them against the railroad company for damages, paying them one hundred dollars as a retainer. Blair & Anderson proceeded in the performance of the professional duties for which they had so been employed, but were thereafter notified by Col. Torrey that their services were no longer needed. Thereupon Blair & Anderson filed their bill, under § 487, code 1892, to subject the alleged indebtedness of the railroad company to Col. Torrey and the other nonresident defendants, wounded and injured soldiers, to their claim for fees in and about the several employments. The railroad company demurred, its demurrer was sustained, and Blair & Anderson, declining to amend, appealed to the supreme court.

Affirmed.

Clifton & Eckford, for appellants.

Has the chancery court, either under its general jurisdiction or the jurisdiction conferred by our statutes, jurisdiction of an attachment and garnishment proceeding in a case where the debtor is a nonresident, and the resident defendant's liability arises ex delicto and rests in unliquidated damages? Although the learned chancellor below refused to take jurisdiction in such a case, we think we can show that the question has not only been answered in the affirmative by the weight of authority, but that in Mississippi it is stare decisis. It was conceded by counsel for the appellees, in the argument of the case below, that the defendant, the railroad company, could not be liable as garnishee in the law court, and we insist that the law is so written; that at law the garnishee can only be held liable for such demands or debts as the defendant in attachment could enforce in a law court against him. 8 Enc. of Law, 1102, note 5; 1160, note 3; 1161, note 4; 1148, note 1. And that a demand rested in unliquidated damages, until merged into judgment, is not such a debt as can be garnisheed at law. Lehman v. Deuster, 70 N.W. 171; Dibrell v. Neely, 61 Miss, 218. Nor can a claim or demand arising ex delicto be sequestered, either by attachment or garnishment at law, in cases where the tort is relied upon for the recovery. There are many cases where the tort may be waived and assumpsit maintained on the implied contract, and whenever this is the case, then attachment and garnishment will be sustained at law. Fellows v. Brown, 38 Miss. 541; Nethery v. Belden, 66 Miss. 490; Kreisle v. Campbell, 32 S.W. 581.

The procedure by attachment and garnishment at law is statutory and the words used in our statutes--i. e., "debt, " "indebtedness, " "debtor, " and "creditor" do not include a liability resting in unliquidated damages or arising ex delicto. 5 Am. & Eng. Enc. L., bottom pp. 145, 148-152. Dibrell v. Neely, 61 Miss. 218; Fellows v. Brown, 38 Miss. 541. 8 Am. & Eng. Enc. L., bottom pp. 1162-1163. Code of 1892, § 125, uses the following word "indebtedness;" code of 1892, § 136, uses the words "all persons indebted;" code of 1892, § 2130, uses the words, "any person who is indebted."

Here, then, there is no remedy at law. Here the bill avers the personal injuries suffered by the nonresident defendant on account of the gross negligence of the defendant the railroad company; the indebtedness of the nonresident defendants to complainants and of the railroad company to these nonresident defendants for damages for the grievous wrong inflicted. The demurrer admits the wrong and the injuries; but invokes the demurrant's own wrong and hides behind the principle which fetters the law courts, "that for a debt arising ex delicto you cannot maintain attachment where the tort is relied on for a recovery;" that the garnishment against the railroad rests on the attachment, and inasmuch as the non-resident defendants could not maintain attachment at law for damages growing out of the tort, therefore there can be no recovery in a court of equity.

The railroad company sets up its own wrong and fraud, and says: "What if I did compromise and settle with your client after the suit was filed and I was garnisheed? The debt or claim against me was for unliquidated damages, and you could not sequester or impound this debt by garnishment at law so as to prevent me from making the best terms I could with the clients;" that because no procedure was provided by the law courts to prevent such a wrong, then no remedy exists in equity, on account of the same impotency.

Now, we invoke the maxim out of which has grown one of the largest jurisdictions of equity, and a jurisdiction which is most of all favored by the equity courts: "For every wrong there is a remedy." And we say that this maxim has been applied in similar cases and the jurisdiction of equity courts recognized in two recent and well-considered cases by our supreme court; that, independent of any statute, the court of chancery has general jurisdiction of this cause.

The learned counsel for appellees, in his argument, admits that if we had found some property within the jurisdiction belonging to the nonresident defendants, that then the jurisdiction would be clear under the cases of Dollman v. Moore, 70 Miss. 267, and Gordon v. Warfield, 74 Miss. 557. But the vice and error of his contention is that he is quibbling over the construction of statutes and absolutely ignoring this fundamental jurisdiction growing out of the equitable maxim above based on the principle of ex rei necessitate. Barrett v. Carter, 69 Miss. 593; Gordon v. Warfield, 74 Miss. 557.

To construe our statute so as to apply the words "whether the debt be legal or equitable" alone to the debt owed by the nonresident debtor himself; to hold that the debt owed by the resident garnishee must be a legal debt, would be highly technical and contrary to the words and context of the statute. There can be no reason for such a distinction, for the court can investigate the liability of the tort feasor on an issue between the garnishee and complainant as well as if the issue were between the original parties to the transaction.

The true construction of the statute is that in attachment proceedings in equity, wherever it was made to appear that the defendant, whether he be the nonresident defendant or resident garnishee, owed a debt which ex aequo et bono ought to be paid to complainant, then the chancery court, having jurisdiction of the case otherwise, would require him to do so whether the debt arose ex delicto or ex contractu. Robinson v. Burritt, 66 Miss. 356.

Blair & Anderson, pro se.

Dollman v. Moore, 70 Miss. 267, and Gordon v. Warfield, 74 Miss. 557, independent of the change contained in § 486, code 1892, settles the question of the right of the chancery court to entertain an attachment bill to enforce a demand ex delicto against the original debtor; but our opponent insists that the chancery court is without jurisdiction to proceed against a third person, or garnishee, whose liability is ex delicto. This is very fine hair-splitting. He construed and contended that the words "debtor and effects, " and the word "indebted, " in reference to garnishee, in § 486, were used strictly in a technical legal sense, and gave different meaning to the word "debt" in the preceding part. Certainly, if a court of chancery could adjudicate a pecuniary obligation of the original debtor, arising ex delicto, it could equally do so as to the liability of a third person. The right to pass upon the question in the one case necessarily includes the power to pass upon it in all proper cases. They are pari passu.

The court will observe the change made by § 486, code 1892 in the law of attachment in...