Delta Insurance & Realty Co. v. Interstate Fire Ins. Co.

• Decision Date: 29 January 1917
• Docket Number: 18489
• Parties: DELTA INS. & REALTY CO. v. INTERSTATE FIRE INS. CO
• Court: Mississippi Supreme Court

74 So. 420

113 Miss. 542

DELTA INS. & REALTY CO. v. INTERSTATE FIRE INS. CO

No. 18489

Supreme Court of Mississippi

January 29, 1917

Division A

APPEAL from the chancery court of Leflore county, HON. JOE MAY Chancellor.

Suit by the Delta Insurance & Realty Company against the Interstate Fire Insurance Company. From a decree for defendant plaintiff appeals.

Appellant a domestic corporation with domicile at Greenwood, Miss., began this suit in the chancery court, in which it seeks to hold certain funds which came properly into its hands and which belonged to the defendant, an Alabama corporation, for the payment of damages alleged to be due to defendant by the plaintiff for breach of a contract. The appellant represented appellee generally in the states of Mississippi and Tennessee, its duties being to supervise and check up the agents of the appellee and remit the funds collected to appellee at stated periods. Appellant charges that appellee without cause canceled its agency contract, which had not expired, and damaged him in the sum approximating twenty-eight thousand dollars. At the time this suit was filed, appellant had in its hands nearly ten thousand dollars of funds of the appellee which it declined to remit to the appellee, claiming damages for the breach of the contract as aforesaid. The proceeding is in rem against the fund alone, and there was formal constructive service by publication and the mailing of summons to the nonresident defendant, who had no other assets in Mississippi. No personal service was obtained on the appellee, nor was an attachment run against the funds. The prayer of the bill was that the funds in the hands of the complainant (appellant) belonging to the defendant company be condemned and applied to the payment pro tanto of the liability for damages of the defendant to the complainant, and that a personal decree be rendered in favor of the complainant against the defendant for the balance. The chancellor upon the hearing dismissed the bill of complaint, and from this decree complainant appeals.

Decree affirmed.

Gwin & Mounger, for appellant.

Percy & Percy, for appellee.

OPINION

HOLDEN, J.

The settled law in Mississippi is that, if the defendant is a nonresident, and the thing involved, the res, is within the territorial jurisdiction of the court and is brought under the control of the court by legal process, viz., attachment against the lands, or attachment and garnishment against any such debtor and resident persons (defendants) who have in their hands effects of, or are indebted to, such nonresident debtor, then the state court has jurisdiction to render judgment, not against the nonresident in personam, but against the thing, the res, when it its brought under the control of the court by its process, and not otherwise.

The basis of the jurisdiction of the chancery court in this case is statutory; and the court has no jurisdiction under the statute unless the following facts exist, viz., the absence of the debtor, the presence here of effects in the hands of resident persons belonging to him, or debts due to...