G.W. Bull & Co. v. Boston & M.R.R.

• Decision Date: 23 April 1931
• Docket Number: No. 20475.,20475.
• Citation: 175 N.E. 837,344 Ill. 11
• Court: Illinois Supreme Court
• Parties: G. W. BULL & CO. v. BOSTON & M. R. R. (PULLMAN CO., Garnishee).

344 Ill. 11

175 N.E. 837

G. W. BULL & CO.

v.BOSTON & M. R. R. (PULLMAN CO., Garnishee).

No. 20475.

Supreme Court of Illinois.

April 23, 1931.

Action by G. W. Bull & Company against the Boston & Maine Railroad, in which the Pullman Company was garnishee. From an adverse judgment, the garnishee appeals.

Reversed.Appeal from Municipal Court of Chicago; George A. Curran, judge.

John Gibson Hale, of Chicago, for appellant.

J. V. De Laney, of Chicago, for appellee.

HEARD, J.

This is an appeal by the Pullman Company, a corporation, from a judgment against it, as garnishee, in favor of the Boston & Maine Railroad, a corporation, for the use of G. W. Bull & Co., a corporation, in a suit brought in trespass in the municipal court of Chicago. For a statement of the pleadings and proceedings in the cause prior to January 23, 1925, reference is made to Bull & Co. v. Boston & Maine Railroad, 324 Ill. 579, 155 N. E. 474. After the vacation of the judgment on January 23, 1925, no further action was taken in the cause until January 28, 1929. An affidavit for attachment in aid was filed and a writ of attachment in aid was issued, returnable February 24, 1929, and directing the summoning of the Pullman Company as garnishee, which writ was returned properly served upon the Pullman Company. The return showed that the Boston & Maine Railroad Company was not found in the city of Chicago and that none of its property on which to levy the writ was found in that city. On September 6, 1929, there was filed a purported certificate of the clerk of the court that on that day, being within ten days after the first publication of a notice contained therein, he sent by mail, postage prepaid, a copy of the notice to the Boston & Maine Railroad, defendant, at Boston, Mass. This notice, after the caption, recited: ‘Public notice is hereby given to the said Boston and Maine Railroad that a writ of attachment in aid of a suit at law heretofore commenced by summons and still pending, issued by the municipal court of Chicago, dated the twenty-eighth day of January, 1929, at the suit of the above named plaintiff, G. W. Bull & Co., Inc., and against the lands, goods, chattels, rights, moneys, credits and effects of the said Boston and Maine Railroad for the sum of $1937.67, directed to the bailiff of the municipal court of Chicago to execute, and which writ has been duly returned by said bailiff executed by levying on property described and more fully set forth in said return,’ and that unless the Boston & Maine Railroad should personally be and appear before the municipal court in branch 6, room 913, at the city hall in the city of Chicago, at 9:30 a. m. on Monday, the 14th of October, 1929, and give special bail and plead to the plaintiff's action, judgment would be entered against it and in favor of G. W. Bull & Co., and so much of the property attached as might be sufficient to satisfy the judgment and costs would be sold to satisfy the same.

Bull & Co.'s statement of claim as originally filed alleged that the defendant, the Boston & Maine Railroad Company, a corporation (not the Boston & Maine Railroad, a corporation, against which this judgment is rendered), was a common carrier in the year 1921 between points in the state of Massachusetts; that plaintiff delivered to defendant one carload of tub butter at Worcester, Mass., on October 22, 1921, for transportation to Boston, and that it, as a common carrier, received the butter, to be transported within a reasonable time and delivered in like condition as received, for a valuable consideration to be paid, as freight; that it was the duty of defendant, upon receipt of the butter, to transport the same within a reasonable time and deliver it in like condition as received, but that it failed in its duty and did not deliver the butter in like condition as received, but, on the contrary, it was delivered in a deteriorated and tainted condition, with a strong odor of apples and other fruits, which lessened its value, and that plaintiff was damaged in the sum of $3,000, for which it brought this suit. This statement of claim was thereafter amended at different times, but all such amendments were based upon the same transaction.

The record under date of April 24, 1930, after the caption of the cause, contains the following: ‘Judgment vs. Defendant, Boston-Maine Railroad Company, a corp., twenty-eight hundred forty-two and 12/100 dollars, ($2842.12).’ The suit was originally brought against the Boston & Maine Railroad Company, a corporation. Thereafter the Boston & Maine Railroad, a corporation, was made a party defendant together with the original defendant. Thereafter the original defendant the Boston & Maine Railroad Company was dismissed, and on April 24, 1930, at the time of the rendition of this purported judgment the Boston & Maine Railroad Company, against whom the judgment purports to have been rendered, was no longer a party to the suit. It is likewise to be noted that the record does not show in whose favor this purported judgment was rendered. Following this entry in the record, and as of the same date, appears the filing of an additional statement of claim by Bull & Co. by leave of court, averring that plaintiff is a resident of Illinois and an Illinois corporation and was such at the time the shipment moved from Chicago to Worcester, Mass., where the same was stored, pursuant to tariffs then on file, of which defendant was a party, and that when such shipment was delivered to defendant it was in sound shipping condition, and that interest in addition to damages was asked, as payment had been wrongfully and vexatiously delayed. No notice of such proposed amendment or of such amendment was given to the Boston & Maine Railroad.

On May 16, 1930, the Boston & Maine Railroad entered its special appearance for the sole purpose of moving to vacate the judgment of April 24, 1930, and moved to vacate the judgment for the reasons following:

First. Because this movant is a corporation existing by virtue of the laws of Massachusetts and has lines of railway only in the states of Massachusetts, Maine, New Hampshire, and New York, its western terminus being Rotterdam Junction, N. Y., and its managing and principal office at Cambridge, Mass.; that it has no license to transact business within the state of Illinois, and has never transacted any of its business within said state other than by maintaining offices in said state for the soliciting of business to be moved over its lines in other states; that the exercise of jurisdiction by this court over it or its property under the process issued in this cause and rendition of the judgment in this cause on the 24th day of April, 1930, in the sum of $2,842.16, together with garnishment of its property which may be held or its credits its or moneys which may be due from citizens of Illinois, is without jurisdiction of this court and constitutes a violation of the due process provision of the fifth amendment to the federal Constitution and the Fourteenth Amendment to said Constitution as well, for which reasons the issue of the process in this cause and the rendition of said judgment were beyond the jurisdiction of this court, and the court in rendering the judgment was without jurisdiction of the person of this movant or the subject-matter of this cause.

Second. Plaintiff's statement of claim in this cause counts upon a cause of action arising from and out of a shipment of property made from Worcester, Mass., to Boston, Mass., and the answer of the Pullman Company as garnishee herein admits the existence of a traffic balance in favor of this movant, arising from the participation of this movant and the garnishee in the interstate commerce of the United States of as much as $2,000 at the time of the institution of this suit; that this movant is a Massachusetts corporation without line of railway in the state of Illinois, and has never transacted any of its business within Illinois other than to maintain offices there for the solicitation of traffic to be moved over its lines of railway in the states of New York, New Hampshire, Maine, Massachusetts, and states other than Illinois and has not consented to be sued in Illinois; that under such circumstances and conditions the application of the statute of Illinois authorizing the issue of the writ of attachment in aid and of garnishment process thereunder, for the garnishment, seizure, holding, or tying-up of the money or indebtedness which may be due as a traffic balance from the Pullman Company to this movant, arising from the participation of this movant and said company in interstate commerce of the United States, constitutes, and is, an unreasonable burden upon the interstate commerce of the United States and renders...