Bristol v. Brent

• Decision Date: 02 August 1910
• Docket Number: 2120
• Parties: BRISTOL v. BRENT (ATCHISON, TOPEKA & SANTA FE RAILWAY COMPANY, Garnishee)
• Court: Utah Supreme Court

110 P. 356

38 Utah 58

BRISTOL v. BRENT (ATCHISON, TOPEKA & SANTA FE RAILWAY COMPANY, Garnishee)

No. 2120

Supreme Court of Utah

August 2, 1910

APPEAL from District Court, Third District.--Hon. M. L. Ritchie Judge.

Action by G. E. Bristol against Noah Brent and the Atchison, Topeka & Santa Fe Railway Company, Garnishee.

Judgment discharging garnishee. Plaintiff appeals.

REVERSED AND REMANDED, with directions.

E. A Walton for appellant.

Goodwin & Van Pelt for respondents.

FRICK J. STRAUP, C. J., and McCARTY, J., concur.

OPINION

FRICK, J.

This is the third time this case comes before this court in some form. The first time it was on the garnishee's motion to dismiss the appeal on the ground that the judgment discharging it was not a final judgment, and therefore not appealable. (Bristol v. Brent, 35 Utah 213, 99 P. 1000.) On the second appeal the garnishee contended that the court had not acquired jurisdiction of it nor of the res--the debt. We held that, while the court had obtained jurisdiction of the garnishee, it had nevertheless not obtained jurisdiction of the debt due from the garnishee to the defendant in the action. (Bristol v. Brent, 36 Utah 108, 103 P. 1076.) On this appeal the question presented is whether the debt admitted to be owing by the garnishee to the defendant in the action can be attached by the process of garnishment in view that all the parties to the action, including the garnishee (a foreign corporation), are nonresidents of the state, view that all the parties to the action, including the garnishee was incurred, and prima facie is payable, at the home of the defendant in the action, who is a resident of the state of California. The district court permitted the appellant to amend the return of service upon the garnishee (which we in the former appeal held insufficient) so as to conform to the views expressed in our former opinion. After the return was amended so as to show that service had been made in accordance with the statute of this state, the district court nevertheless entered judgment discharging the garnishee for the reason, as stated by it, "that this court has acquired no jurisdiction of the garnishee, nor over the indebtedness due from the garnishee to the defendant." The foregoing conclusion is based upon facts found by the court, which, in substance, are as follows: That neither of the parties to the action, including the garnishee, were at the commencement of the action, or at the time of the service of process, residents of the state of Utah; that the garnishee is a corporation of the state of Kansas, engaged in the business of a common carrier of both freight and passengers between Chicago, in the state of Illinois, and the state of California; that said garnishee never owned or operated any railroad in the state of Utah; that at the time service was made upon the garnishee it was indebted to the defendant in the action in the sum of $ 75.14, "of which the sum of $ 45.45, and no more, was due and payable on September 15th, the next preceding pay day, at the general offices of the company (the garnishee) at Los Angeles, Cal.; that such sum was due for services rendered by the defendant to the garnishee at Point Richmond, in the state of California." Finding No. 5 is as follows: "That the garnishee, at the date of the service of the garnishee summons upon C. F. Warren, kept and maintained at Salt Lake City, Utah, what is usually termed and known as a 'commercial agent,' who maintained an office for that purpose; that C. F. Warren was such commercial agent, and John J. Devereux was his assistant; that the business consisted in soliciting freight from merchants and in looking after passenger business. The said agent gave no bills of lading, or receipts, or shipping bills. Nothing was signed or executed by him, except routing orders. The agent obtained routing orders signed by the shippers and mailed such orders to the eastern offices of the company. He issued no passenger tickets, and did not receive any money from prospective passengers. This business thus solicited amounted to several thousand dollars per annum." The other findings relate entirely to defendant's claim of exemption. He, however, makes this claim under the statutes of California, and is a resident of that state, and not by virtue of any law or statute of this state.

It is no longer an open question that the exemption laws of a state have no extraterritorial effect, and, in the absence of local statutes, will not ordinarily be given effect in another state. There is nothing made to appear in this case which would entitle the defendant to an exemption under the laws of this state. (12 A. & E. Enc. Law [2d Ed.], 78, 79; 18 Cyc. 1376, 1377.) The trial court, after applying the law to the foregoing facts, arrived at the conclusion we have before set forth, and entered judgment discharging the garnishee.

Counsel for appellant most earnestly contend that the trial court erred in its conclusions of law and in entering judgment, while counsel for the garnishee, with equal earnestness, insist that the court's ruling is sound, and that the judgment conforms to the law applicable to the undisputed facts. In view that it becomes important to determine whether, under our statute, the garnishee was legally suable in this state for the amount conceded to be owing by it to the defendant, we shall first consider that question. In passing we remark that the question just stated is important in this case only so far as it affects the rights of the defendant in view of the decisions of the Supreme Court of the United States to be noticed hereafter on another branch of the case. In so far as the rights of the garnishee are concerned, it has waived the question of personal jurisdiction by voluntarily appearing in the action; but in waiving its rights it does not and could not waive the rights of the defendant in so far as jurisdiction over his property, the debt, is concerned, and hence the question is open as to him although closed as to the garnishee. Section 2948, Comp. Laws 1907, which regulates the kind and manner of service of legal process upon foreign corporations, so far as material, reads as follows:

"The summons must be served by delivering a copy thereof as follows: . . . If the defendant is a foreign corporation, or nonresident joint-stock company or association, to the president, secretary, treasurer, or other officer thereof, or to the person designated by such corporation, company, or association, as one upon whom process may be served. If no such person can be found, then upon any clerk, superintendent, general agent, cashier, principal director, ticket agent, station keeper, managing agent, or other agent having the management, direction, or control of any property, of such corporation, company, or association. If none of the persons named in this subdivision can be found in the county in which such action is commenced then service may be made as provided herein upon any such persons in any county of this state. If there be none of such persons in the state of Utah, and the defendant has, or advertises, or holds itself out as having an office or place of business in this state, or does business in the state, then upon the person doing such business or in charge of such office or place of business."

In view of the foregoing provisions, and of the facts as found in finding No. 5, supra, and the other facts before stated, was the garnishee a foreign corporation suable in the courts of this state, and could jurisdiction be acquired over it without its consent so as to reach and condemn the debt owing by it to the defendant? The district court held that the garnishee was not doing business in this state, that it was not represented in its corporate capacity by the so-called "commercial agent," and hence was not suable in the courts of this state without its consent. From this the court arrived at the conclusion we have before stated. In arriving at such conclusion, the court no doubt followed the rule laid down in Green v. Chicago B. & Q. Ry. Co., 205 U.S. 530, 27 S.Ct. 595, 51 L.Ed. 916; Rich v. Chicago, B. & Q. Ry., 34 Wash. 14, 74 P. 1008; Berger v. Pennsylvania Ry. Co., 27 R.I. 583, 65 A. 261, 9 L. R. A. (N. S.) 1214, and similar cases, which, in view that the foregoing cases are typical upon the question, need no special reference here. In the case of Green v. Chicago, B. & Q. Ry. Co., supra, the facts were very similar to the facts in the case at bar, and upon those facts it was held by both the Supreme and the District Courts of the United States that the defendant in that case was not doing business in the Eastern district of Pennsylvania within the purview of the federal statute then under consideration. Mr. Justice Moody, in speaking for the Supreme Court of the United States, pointed out, however, that the decision is based upon the federal statute, and that the cases in which a contra conclusion was reached involved "the interpretation of a state statute and the jurisdiction of the state courts." We refer to this statement only to show that the Supreme Court of the United States, as well as many other courts that have had occasion to pass upon the question, have always based their decisions, to a large extent at least, upon the terms of the particular statute in question. The service of process in the case of Rich v. Chicago, B. & Q. Ry., supra, was made under a statute the material part of which is as follows: ". . . If the suit be against a foreign corporation or nonresident joint-stock company or association doing business within this state, to any agent, cashier, or secretary thereof. . . ." The statute was in similar terms both in the Green and in the Berger Cases, supra; and such is also...