Clark Milling Co. v. St. Louis Southwestern Ry. Co.
| Decision Date | 11 April 1925 |
| Docket Number | 16053. |
| Parties | CLARK MILLING CO. v. ST. LOUIS SOUTHWESTERN RY. CO. ET AL. |
| Court | Georgia Court of Appeals |
Syllabus by the Court.
The court can acquire no jurisdiction over a defendant's property by attachment without a valid levy or a seizure of his property by garnishment.
There is no appearance and pleading to the merits, such as will constitute a waiver of jurisdiction, where the appearance is solely for the purpose of contesting the jurisdiction although the defendant styles it an "answer."
"Where a railroad company of this state receives from a railroad company in another state a car, under a contract by which the domestic company has the right to carry the car loaded to its destination in the state and unload it, and then to reload and return it to the owner beyond the limits of this state paying for the use of the car, the right of the domestic company to the use of the car is superior to the right of an attaching creditor, who, without any other lien, seeks to subject the car to attachment by service of the summons of garnishment upon the domestic company; and, in the absence of appropriate equitable pleadings in a court with jurisdiction to render affirmative equitable relief, such car is not subject to the process of garnishment." Southern Flour & Grain Co. v. Northern Pacific Ry. Co., 127 Ga 626(1), 56 S.E. 742, 9 L.R.A. (N. S.) 853, 119 Am.St.Rep 356, 9 Ann.Cas. 437.
Error from City Court of Richmond County; J. C. C. Black, Jr. Judge.
Attachment suit by the Clark Milling Company against the St. Louis Southwestern Railway Company, in which a number of other railway companies were garnished. To review judgment discharging garnishees and dismissing attachment, plaintiff brings error. Affirmed.
Henry G. Howard and Jas. S. Bussey, Jr., both of Augusta, for plaintiff in error.
W. Inman Curry, Cumming & Harper, and W. K. Miller, all of Augusta, for defendants in error.
BELL, J. (after stating the facts as above).
1. The court can acquire no jurisdiction over a defendant's property by attachment without a valid levy or a seizure of his property by garnishment. Associated Press v. United Press, 104 Ga. 51 (2), 29 S.E. 869; Baker v. Aultman, 107 Ga. 339 (1), 33 S.E. 423, 73 Am.St.Rep. 132; Massachusetts Bonding Co. v. U.S. Conservation Co., 31 Ga.App. 716, 122 S.E. 728; United Provisions Corp. v. Board of Missions, 33 Ga.App. 9 (1), 124 S.E. 820.
2. The defendant was not to be held as having appeared and pleaded to the merits merely because the pleading first filed was marked "answer," since it appeared therein that the very purpose of the appearance was to contest the court's jurisdiction. A pleading should be construed not simply by what it is called, but according to what it is. There being nothing, in either pleading filed by the defendant, that amounted to an appearance and pleading to the merits, the court did not acquire jurisdiction by waiver. Civil Code 1910, § 5664; Hall v. Roehr, 10 Ga.App. 379 (2), 73 S.E. 550; Epps v. Buckmaster, 104 Ga. 698, 30 S.E. 959.
3. Upon the question whether there was seizure under the garnishments, the case is controlled by the following ruling of the Supreme Court, in Southern Flour & Grain Co. v. Northern Pacific Ry. Co., 127 Ga. 626 (1), 56 S.E. 742, 9 L.R.A. (N. S.) 853, 119 Am.St.Rep. 356, 9 Ann.Cas. 437:
"Where a railroad company of this state receives from a railroad company in another state a car, under a contract by which the domestic company has the right to carry the car loaded to its destination in this state and unload it, and then to reload and return it to the owner beyond the limits of this state, paying for the use of the car, the right of the domestic company to the use of the car is superior to the right of an attaching creditor, who, without any other lien, seeks to subject...
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