Collier v. Chamblee

• Decision Date: 29 September 1924
• Docket Number: 24209
• Citation: 136 Miss. 257,101 So. 372
• Court: Mississippi Supreme Court
• Parties: COLLIER v. CHAMBLEE. [*]

101 So. 372

136 Miss. 257

COLLIER v. CHAMBLEE. ^[*]

No. 24209

Supreme Court of Mississippi

September 29, 1924

Division B

ATTACHMENT. Mere absence from state, coupled with fact that creditor does not know whereabouts of debtor, does not authorize attachment, if process may be served; to authorize attachment for removal from state or absence from domicile there must be liability to serve summons; burden on attaching creditor to show inability to serve summons to obtain jurisdiction of creditor's person.

Mere absence from the state, coupled with the fact that the creditor does not know where the defendant is, does not authorize attachment against the defendant, if process may be served under the provisions of section 2933, Hemingway's Code (section 3926, Code of 1906). To authorize attachment because of removal from the state, or absence from domicile there must be an inability to serve the summons in the manner provided by law to obtain jurisdiction of the person, and the burden of proof is on the attaching creditor to show this. Alston v. Newcomer, 42 Miss. 186; Dent v. Jones, 50 Miss 265; Morgan v. Nunes, 54 Miss. 308; Bowers v. Boss, 55 Miss 213, cited.

HON. G E. WILSON, Judge.

APPEAL from circuit court of Leake county, HON. G. E. WILSON, Judge.

Action by W. M. Collier against L. C. Chamblee. From a judgment for defendant, plaintiff appeals. Affirmed.

Affirmed.

Wells, Stevens & Jones, for appellant.

The facts are strictly all one way, and the case, therefore, presents a single legal question; that is, whether the plaintiff made out one or more of his grounds for attachment. The defendant did not undertake to controvert the facts. Do the facts, therefore, sustain the attachment?

There are eleven statutory grounds for attachment, and all of them are remedial and in aid of a creditor who is entitled to collect an indebtedness from his debtor, and are designed to facilitate enforcement of the creditor's rights in a fair, just, and legal way. The first ground of attachment is based upon the non-residence of the debtor. Residence and domicile are not synonymous or convertible terms. Enochs v. State, 97 So. 537; La Tourette v. McMaster, 248 U.S. 465, 63 L.Ed. 362; Alston v. Newcomer, 42 Miss. 186; Morgan v. Nunes, 54 Miss. 308; Bowers v. Ross, 55 Miss. 213; Brown v. Crane, 69 Miss. 678; 11 C. J. 776, and authorities there cited.

Now, in the case at bar, the plaintiff did not charge that the defendant was a non-resident, but relied upon the second and third grounds of attachment, to-wit: "(2) That he had removed himself out of this state; (3) That he, the said L. C. Chamblee, absconds or conceals himself so that he cannot be served with a summons."

The facts bring this case within both the letter and spirit of the second ground of attachment, and the facts are sufficient to make out a prima-facie case certainly on the third ground of attachment. The defendant, not having denied the facts and having made no explanation whatsoever of his mysterious conduct, the plaintiff was entitled to a peremptory instruction under either one or both of these grounds of attachment.

The statute is the law of the case. If a creditor either solvent or insolvent removes himself or his property out of the state, or is about to remove himself or his property out of the state, he is liable to attachment. It is not necessary for us to speculate upon all that the statute comprehends in this regard or to indulge in its provisions of exclusion or inclusion. We would not contend that a debtor going upon a business mission beyond the state or taking a vacation during the summer would be liable to attachment. The statute must have a reasonable construction, and both the litigant and the court must remember the object and salutary purposes of the statute. The statute, in our judgment, means that if a debtor has left the state with no fixed purpose of returning or no definite purpose of returning, leaving the creditor helpless in serving process upon the debtor, then the property of the debtor can be seized in order that the court may gain jurisdiction of the case, and the rights of the creditor protected. It is not necessary for the plaintiff to show that the defendant has removed with the intention of locating at any definite place, and it is not necessary to show that the defendant has any definite plans whatsoever. The simple, plain showing that he has removed himself out of the state so that process cannot be served upon him, is sufficient. It is the helplessness of the creditor in serving process that justifies the remedy. The creditor is entitled to have process served upon a resident debtor and he is entitled to have the property of the resident debtor stand charged with his legal liability. The moment the debtor undertakes to remove either himself or his property out of the state, that moment the statute intervenes and grants a remedy.

The third ground of attachment relied on is somewhat different from the second. It uses the terms "Absconds or conceals himself." These terms are really convertible. To abscond means to conceal, and vice versa. This is the express ruling of our court in Wallis v. Wallace, 6 How. 254. There are numerous cases construing the word "abscond." Many of them are collated in 1 Words and Phrases, 1st Series. Smith v. Johnson, 62 N.W. 217, 43 Neb. 754; Ives v. Curtis, 2 Root (Conn.) 133; Stafford v. Mills, 32 A. 7, 8, 57 N. J. Law, 574.

The facts not only show an actual removal from the state, but were sufficient to justify the jury in finding that the defendant was evading the process of the court and had absconded and had concealed himself so that no one could locate or communicate with him. It is elementary that the facts as they existed at the time the writ was issued must govern. 6 Corpus Juris, pages 48, 49, section 46; Brown v. Crane, 69 Miss. 678; Morgan v. Nunes, 54 Miss. 308. The Alabama case of Troy v. Rogers, 20 So. 999, appears to be directly in point.

David E. Crawley and James T. Crawley, for appellee.

Attachment is an extraordinary remedy, and is to be resorted to only in those cases where the ordinary process of the court will not serve the purpose. It is a statutory creature, it is in derogation of the common law, and is to be strictly construed. It only extends to cases of emergency embraced in the eleven grounds enumerated in the statute. Hopkins v. Grissom, 26 Miss. 143; Rankin v. Dulaney, 43 Miss. 197; Yale v. McDaniel, 69 Miss. 337, 12 So. 558; 6 C. J., page 30, section 3.

Had the appellee "removed" himself out of this state within the meaning of the statute? Conceding for the sake of the argument that the appellant had information to the effect that the appellee was in some state other than this, does that fact justify an attachment.

We submit that it requires more than the mere absence of a person from his home and the state of Mississippi to justify an attachment of his estate.

The attaching creditor must prove: First: That the debtor is absent from the state of Mississippi at the time the writ of attachment is sued out, and that from evidence within his knowledge at the time the suit is instituted. Second: That the debtor had left his place of residence, had abandoned his home and had no intention of returning within a reasonable time, and that the ordinary process of the court was not open to him. It takes this to constitute the "removal" contemplated by the statute.

And where concealment of the debtor's person is relied upon to sustain the writ of attachment, it must be such a concealment, or absconding, as will block and defeat the ordinary process of the court. If the process of the court can be executed by any one of the means provided by the statute, sec. 2933, Hemingway's Code, an attachment will not lie on the grounds set forth in the appellant's affidavit.

The appellee's wife was in their home in the town of Carthage, within the shadow of the court house, process could have been had upon defendant, by the service of a copy on his wife. This course would have been effective. A valid judgment against the defendant could have been entered upon it. But this course was not pursued.

The defendant's property was intact. There is no proof in this record that he was insolvent. There is nothing to show that he had undertaken to remove any of his property from the state, or to dispose of it with the intent to defraud his creditors. The bare and naked fact of his absence from his home is all that the appellant has to stand upon. This fact is not such as to justify a belief in the mind of a reasonable man that the defendant had abandoned his residence and family, and had left the state of Mississippi with no intention of returning. These things are indispensable to the maintenance of this attachment.

Both the debtor and his family must be absent from their usual place of abode under such circumstances as will cause the attaching creditor to believe that the debtor has absconded or has removed himself from the state in order that an attachment will lie. Tiller v. Abernathy, 37 Mo. 196; McMorran v. Moore, 113 Mich. 101, 71 N.W. 505.

The presumption of law is that when a man once establishes his fixed place of abode that it continues to remain his home, residence, domicile, as the case may be. In this case the home, the residence, the domicile and the citizenship of the debtor was fixed in Carthage, Leake county, Mississippi. It is incumbent on the part of the plaintiff to overcome this presumption of law by a clear preponderance of the evidence, and failing in this the judgment of court below was correct. C. B. Coles Co. v. Blythe, 69 N. J. L. 203, 54 A. 240; Morgan v. Nune, 54 Miss. 308.

The test is "whether or not the debtor has left in this state an...