Clark v. Louisville & N. R. Co.

• Decision Date: 13 October 1930
• Docket Number: 28321
• Citation: 158 Miss. 287,130 So. 302
• Parties: CLARK v. LOUISVILLE & N. R. CO. et al
• Court: Mississippi Supreme Court

130 So. 302

158 Miss. 287

CLARK v. LOUISVILLE & N. R. CO. et al

No. 28321

Supreme Court of Mississippi

October 13, 1930

(En Banc.)

1 CORPORATIONS. Foreign railroad corporation with line of railroad within state and property subject to execution and liable to personal judgment held, nevertheless "nonresident" within attachment statute (Hemingway's Code 1927, sections 307, 4506).

A foreign railroad corporation, although having a line of railroad in the state and property subject to execution and an agent upon whom process may be served authorizing a personal judgment to be obtained, is nevertheless a foreign corporation within purview of section 307, Hemingway's Code 1927, section 536, Code 1906, and subject to attachment under the laws of the state as a foreign corporation.

2 ATTACHMENT. Judgment. Parties. Statute authorizing attachment suits against nonresidents is primarily proceeding in rem to subject nonresidents' property to complainant's demand; personal judgment in attachment suit against nonresidents can be rendered only where defendant has been personally served or has entered appearance; to maintain attachment suit against nonresidents, resident having property of nonresident in his possession or owing debt to nonresident is necessary party (Hemingway's Code 1927 section 307).

Section 307, Hemingway's Code 1927, section 536, Code 1906, is primarily a proceeding in rem to subject property or effects in the hands of resident defendants owing debts to nonresidents to the demand of a complainant, and it is only in cases where personal summons has been served upon the defendant, or where it has entered an appearance, that a personal judgment can be rendered under the said section. To maintain a proceeding under this section it is necessary to have some resident of the state who has property or effects in his possession or who owes a debt to a nonresident made defendant, and consequently such party is a necessary party to maintain an action under this section.

3 RAILROADS. Statute fixing venue in action against railroad in any county in which line of railroad runs is applicable only when railroad is sued alone; suit against two or more railroads as necessary defendants or against several defendants living in separate counties falls under provisions of general venue statutes (Hemingway's Code 1927, sections 336, 500, 501).

Section 501, Hemingway's Code 1927, section 708, Code 1906, chapter 148, Laws 1926, fixes the venue against a railroad, or other corporations or individual named therein, when sued alone, but if there be suits against two or more corporations owning railroad lines or other property and such parties are necessary defendants, or where there are several defendants living in separate counties, this section is not applicable, but the suit falls under the provisions of section 500, Hemingway's Code 1927, section 707, Code 1906, in suits at law, and under section 336 of Hemingway's Code 1927, section 561, Code 1906, in suits in chancery.

4. ATTACHMENT. Generally, attachment may be instituted in county where property or garnishee may be found; attachment suit is not removable to county of defendant's residence for trial, though defendant be freeholder or householder of county of residence.

Ordinarily attachment may be instituted in county where the property or where garnishee may be found, and such suit is not removable to the county where the defendant resides for trial, even though such defendant be a freeholder or householder of the county of his residence.

5. VENUE. Attachment suit against nonresidents brought in county of any necessary defendants as authorized by statute does not unconstitutionally discriminate against any necessary defendant (Hemingway's Code 1927, sections 307, 336).

Proceedings under section 307, Hemingway's Code 1927, section 536, Code 1906, brought in the county of any necessary defendants, is authorized by the said section, and section 336, Hemingway's Code 1927, section 561, Code 1906, and does not unconstitutionally discriminate against any necessary defendant.

6. CONSTITUTIONAL LAW. Venue. State may fix venue of actions according to its conception as to what is necessary to best administration of justice; state need not fix venue of action in any particular place; state in fixing venue of actions cannot unreasonably discriminate between classes of defendants; state may fix venue of actions according to its judgment of convenience, justice, etc., having reference to reasonable conditions if not unreasonably discriminating between litigants or classes of litigants.

A state has a right to fix venue of actions according to its conception as to what is necessary to best administer justice in its courts; it is not necessary for it to fix the venue of action in any particular place; it cannot unreasonably discriminate between classes of defendants, but having reference to reasonable conditions it may fix the venue of actions according to its judgment of convenience, justice, etc., so long as it does not unreasonably discriminate between litigants or classes of litigants.

7. ATTACHMENT. Corporations. Fact that nonresident railroad corporation may be subject to personal judgment in ordinary proceedings at law does not preclude state from subjecting it to attachment on ground of nonresidence, though like domestic corporation is not subject to attachment; state may authorize attachment proceedings upon nonresidents alone.

The mere fact that a railroad company has property and does a local business in the state and has agents in the state upon whom process may be served authorizing a personal judgment in ordinary proceedings at law does not prevent the state subjecting it to attachment on the ground of nonresidence, although a domestic corporation of like kind doing business in the state is not subject to attachment. It is permissible for a state to authorize attachment proceedings upon nonresidents alone.

8. COMMERCE. Attachment proceeding against nonresident interstate railroad in which traffic balances due defendant from other interstate railroads were impounded held not unlawful burden on interstate commerce (Hemingway's Code 1927, section 307; Constitution U.S., article 1, section 8, clause 3).

Proceedings under section 307, Hemingway's Code 1927, section 536, Code 1906, in which traffic balances are impounded in the county of the residence of one of the defendants in which it may be found, does not conflict with the commerce clause of the Federal constitution.

9. CONSTITUTIONAL LAW. Statute authorizing attachment suit against nonresident railroad doing business in county where necessary defendant may be found but where nonresident has no line of railroad or agent held not to deprive nonresident of equal protection of law (Hemingway's Code 1927, section 307; Constitution U.S. Amendment 14).

Proceedings under section 307, Hemingway's Code 1927, section 536, Code 1906, against a nonresident corporation doing business in the state in a county where a necessary defendant may be found but where the nonresident corporation has no line of railroad or agent upon whom process may be served, does not deprive such nonresident corporation of the equal protection of the law. [Copyrighted Material Omitted]

APPEAL from chancery court of Wayne county, HON. D. M. RUSSELL, Chancellor.

Suit by G. C. Clark, as administrator of the estate of Lewis Williamson, deceased, against the Louisville & Nashville Railroad Company and others. From a decree dismissing suit, plaintiff appeals. Reversed and remanded.

Statement of Facts by Ethridge, J.

Lewis Williamson, in his lifetime, filed a suit in the chancery court of Wayne county, being a suit in attachment, against the Louisville & Nashville Railroad Company, the Mobile &amp Ohio Railroad Company, the Illinois Central Railroad Company, and the New Orleans Northeastern Railroad Company (which defendants will be hereinafter referred to by initials), alleging that he was a citizen of Wayne county, Mississippi; that the L. & N. Railroad Company was a foreign corporation under the laws of the state of Kentucky; that the N. O. N. E. Railroad Company was a corporation of the state of Louisiana, having a line of railroad running through Mississippi, with agents and servants upon whom service of process may be had; that the M. & O. Railroad Company is an Alabama corporation, but has a line of railroad running through Wayne county, Mississippi, and has agents and servants in said Wayne county; and that the I. C. Railroad Company is an Illinois corporation, but owns a line of railroad running through the state of Mississippi, and has agents and servants upon whom service of process may be had. It was alleged that the L. & N. Railroad Company owns land in the state of Mississippi, in Harrison, Jackson, and Hancock counties, and operates a line of railroad in said state, and that each of the railroad companies made defendants in this suit operate lines in state of Mississippi and have servants and agents herein upon whom service of process may be had. It was also alleged that in the latter part of 1926, the complainant, Lewis Williamson, was employed by the L. & N. Railroad Company as a section hand, and was, by virtue of said employment, working as such at the time of his injury; that he was put to work on a line of the railroad company's main line track near Winchester, Kentucky, and while so working was assigned to the duty of assisting some other section hands in straightening said track; that he, with other section hands, had laid new cross-ties and new rails of said track; that several trains had been run over the said track before the ties had been fastened to the rails to test out said track, which trains had caused the ties...