First Nat. Bank of St. Louis v. Mississippi Cottonseed Products Co

• Decision Date: 29 October 1934
• Docket Number: 31353
• Citation: 157 So. 349,171 Miss. 282
• Court: Mississippi Supreme Court
• Parties: FIRST NAT. BANK OF ST. LOUIS v. MISSISSIPPI COTTONSEED PRODUCTS CO

157 So. 349

171 Miss. 282

FIRST NAT. BANK OF ST. LOUIS v. MISSISSIPPI COTTONSEED PRODUCTS CO

No. 31353

Supreme Court of Mississippi

October 29, 1934

Division A

Suggestion Of Error Overruled December 10, 1934.

APPEAL from the chancery court of Sunflower county HON. J. L WILLIAMS, Chancellor.

Suit by the Mississippi Cottonseed Products Company against the First National Bank of St. Louis and another, in which the Holmes Bakeries, Inc., and another were summoned as garnishees by virtue of an attachment in chancery. From a decree retaining the bill as to named defendant after sustaining the latter's motion to quash the writ of attachment, named defendant appeals. Reversed and remanded.

Reversed, and decree here for appellant.

Flowers, Brown & Hester, of Jackson, and Cooper Thomas, of Indianola, for appellant.

The case at bar is clearly an attachment case.

The lower court acquired no jurisdiction of appellant by virtue of section 5242 of Revised Statutes of U.S. Title 12, sec. 91, U.S.C. A.

Section 5242, applies regardless of solvency.

Pac. Nat. Bank v. Mixter, 31 L.Ed. 567, 124 U.S. 721, 8 S.Ct. 718.

The state courts are without jurisdiction.

Merchants Laclede Nat. Bank v. Troy Gro. Co., 39 So. 476; 7 C. J., p. 836; Aldridge v. First Nat. Bank, 144 So. 409.

Filing of motion in present case did not constitute general appearance by appellant.

Davis v. C. C. C. & St. L. R. Co., 217 U.S. 157, 30 S.Ct. 463, 54 L.Ed. 708; National City Bank v. Stupp Bros., etc., 113 So. 340.

Appellant is not suable in courts of this state by virtue of Title 12, Section 94, Banks & Banking, U.S.C. A.

First National Bank v. Morgan, 132 U.S. 141; Bank of America v. Whitney Central, 261 U.S. 171.

Moody & Johnson, of Indianola, for appellee.

No issue is presented as to the action of the court in sustaining the motion and discharging the attachment. Hence the only issue presented is as to the action of the court in overruling the motion to dismiss the bill of complaint.

The exemption of a national bank from suit in any state court, except one of the county or city in which it is located, is a personal privilege, which it could claim or not, as it deemed necessary.

First National Bank of Charlotte v. Morgan, 132 U.S. 141, 10 S.Ct. 37, 33 L.Ed. 283; Bank of America v. Whitney Central National Bank of New Orleans, 26 U.S. 171, 67 L.Ed. 594.

It may be true that if the appellant had been sued alone in any county in this state, the court might have been without territorial jurisdiction, and the question of appearance would not be presented by such a record.

However, the record in the case at bar does not present such a question. In the case at bar the suit was based on a joint cause of action against a resident-defendant and a nonresident defendant. That is to say, against J. S. Love, Superintendent of Banks, etc., and the appellant, and, by virtue thereof, the court below had territorial jurisdiction of the cause of action, though it lacked jurisdiction of the person of the appellant, unless it appeared.

Independent of the statute, as we understand it, courts, within their territorial jurisdiction, have jurisdiction of transitory causes of action where the defendant, or any of them resides.

15 C. J., p. 738.

Due to the fact that one of the defendants is within the territorial jurisdiction of the court that jurisdiction can be exercised, provided the resident defendant is served with process, not only as against the resident-defendant, but as well the nonresident defendant on whom process is not served, if he voluntarily appears.

Although a state court would not have jurisdiction of an action if all the defendants were nonresidents of the state, the fact that one or more of several defendants are residents may authorize it to take jurisdiction of the action although the other defendants are nonresidents.

15 C. J. 793-4, 789.

The principle that a general appearance confers personal jurisdiction is of great importance when a nonresident is sued. In a personal action brought against a citizen of another state, the court does not acquire jurisdiction over him by virtue of notice served on him in such other state; process cannot extend beyond the limits of the state. But a nonresident becomes subject to the jurisdiction of the court by a general appearance.

4 C. J., p. 1352.

It is our settled, and long settled, practice that when a party comes in he must come in entirely or else he must entirely stay away.

McCoy et al. v. Watson, 122 So. 368-9.

OPINION

McGowen, J.

The appellee filed its bill in the chancery court of Sunflower county against the appellant, the First National Bank of St. Louis, and J. S. Love, superintendent of banks of Mississippi, and the liquidator of the Bank of Indianola, alleging, in effect, that the Bank of Indianola and the First National Bank of St. Louis had appropriated the proceeds of a certain draft of which appellee was the owner, and which had been collected by the First National Bank of St. Louis, and to the proceeds of which draft the appellee was entitled. The bill sought a money decree against both banks for the amount so collected in said draft. The bill also alleged that the Holmes Bakeries, Inc., a corporation domiciled at Indianola, Mississippi, and Mrs. A. R. Gidden, a resident of Indianola, Mississippi, were indebted to the First National Bank of St. Louis and the Indianola Bank, and they were summoned into court as garnishees by virtue of an attachment in chancery, to make discovery as to the amount of their indebtedness to the banks. Personal service of process was had upon the resident defendants, and it was alleged that the First National Bank of St. Louis was a nonresident domiciled in St. Louis, Missouri, and there was a publication of notice for said nonresident bank, and no attempt was had of personal service of the process.

The First National Bank of St. Louis appeared, as it is alleged, especially for the purpose of raising the question of jurisdiction of the court over it and its property, and for the further purpose of raising the question of the jurisdiction of the court to entertain a suit of that nature, legal, equitable, or otherwise, and for no other purpose, and moved to quash the proceedings against it, and to dismiss the bill because the court was without jurisdiction to entertain the same. Said First National Bank of St. Louis relied, as the basis of its motion, upon two federal statutes; the two pertinent parts of which being as follows:

First. "And no attachment, injunction or execution, shall be issued against such association or its property before final judgment in any suit, action, or proceeding, in any State, county, or municipal court." 12 U.S.C. A., section 91.

Second. "Actions and proceedings against any association under this chapter may be had in any district or Territorial court of the United States held within the district in which such association may be established, or in any state, county, or municipal court in the county or city in which said association is located having jurisdiction in similar cases." Section 94, title 12, Banks and Banking of the United States Code, Annotated. These are parts of the national bank laws.

There was no allegation in the bill that the nonresident foreign corporation was doing business in this state. It was agreed that the nonresident corporation was domiciled in St. Louis, and was a national bank.

Upon the hearing of this motion, the court below sustained the motion to quash the writ of attachment, but held that the First National Bank of St. Louis, by filing such motion, had thereby entered its general appearance, and, for that reason, retained the bill as to said national bank.

From that decree of the court below retaining the bill and declining to dismiss it, an appeal was granted, by the court, to the First National Bank of St. Louis to settle all the controlling principles of the case.

It is contended by the appellant, the...