Grimmett v. Barnwell, 11666.

• Court: Supreme Court of Georgia
• Citation: 184 Ga. 461,192 S.E. 191
• Docket Number: No. 11666.,11666.
• Parties: GRIMMETT v. BARNWELL.
• Decision Date: 17 June 1937

184 Ga. 461

192 S.E. 191

GRIMMETT
v.
BARNWELL.

No. 11666.

Supreme Court of Georgia.

June 17, 1937.

[Ed. Note.--For other definitions of

[192 S.E. 192]Syllabus by the Court.

1. There being no rule at common law whereby in an ordinary action at law the property of a nonresident debtor could be summarily seized and administered, and there being no statute so authorizing other than by attachment, the courts of law of this state are authorized thus to proceed only by a compliance with the law governing attachments Since in an attachment proceeding the giving of the required bond is jurisdictional, a failure to give the bond in such a suit at law renders it null and void.

2. If for any special reason the remedy by attachment against a nonresident debtor in an ordinary claim ex contractu or ex delicto is unavailable or inadequate, equity will lend its aid; but, where in such an ordinary claim the remedy by attachment is available and affords adequate relief, and where, as here, the facts alleged fail to invoke any other recognized principle authorizing equitable relief, a court of equity will refuse to assume jurisdiction.

RUSSELL, C. J., and ATKINSON, J., dissenting.

Error from Superior Court, Bibb County; Malcolm D. Jones, Judge.

Action by Mrs. T. W. Grimmett against J. H. Barnwell. Judgment of dismissal, and plaintiff brings error.

Affirmed.

Mallory C. Atkinson and Park & Strozier, all of Macon, for plaintiff in error.

Jones, Johnston, Russell & Sparks and Ed L. Benton, all of Macon, for defendant in error.

JENKINS, Justice.

A petition was filed in the superior court, claiming damages on account of a personal tort. It was alleged that the defendant is a nonresident but owns described property in the county, that the plaintiff is financially unable to give the bond required by the attachment statutes, and that it is necessary that she have the aid of equity in the nature of an equitable attachment in order to obtain full, adequate, and complete relief. The petition prayed that the court order the sheriff to seize the property by a levy, as in the case of an attachment; that the plaintiff have a judgment against the defendant and against the property, and have such other and further relief as might be necessary; and that the defendant be enjoined from disposing of the property. There being no personal service, the defendant appeared specially, attacked the jurisdiction, and moved to dismiss the action. The court having sustained this attack, the only question presented is whether the superior court, acting as a court of law under

[192 S.E. 193]

express statutory authority or under common-law authority of force in this state, or acting as a court of equity under express statutory authority or under English chancery practice here of force, could, without personal service or express or implied consent of the defendant, grant any of the relief prayed.

1. While it is true, as a general rule, that the courts of this state have no extraterritorial jurisdiction either at law or in equity over citizens of foreign states, so as to conclude them by a judgment in personam, and such a judgment is void unless the defendant has expressly or impliedly waived such jurisdiction (Gordy v. Levison & Co., 157 Ga. 670, 122 S.E. 234; McKnight v. Wilson, 158 Ga. 153, 161, 122 S.E. 702), yet it is also true that neither the Federal Constitution, nor the Constitution of the state, nor the rules of comity between the states, limit the sovereignty of a state so as to preclude it from conferring authority on its courts to seize the property of a nonresident, located within its jurisdiction, and apply such property to the payment of his debts by a judgment or decree in rem. Edwards Mfg. Co. v. Hood, 167 Ga. 144 (3), 145 S.E. 87, 89; Hood v. Hood, 130 Ga. 610, 612, 61 S.E. 471, 19 L.R.A.(N.S.) 193, 14 Ann.Cas. 359; Forrester v. Forrester, 155 Ga. 722 (2), 727, 118 S.E. 373, 29 A.L.R. 1363; Dearing v. Bank of Charleston, 5 Ga. 497, 513, 48 Am.Dec. 300; Adams v. Lamar, 8 Ga. 83, 90; Molyneux v. Seymour, 30 Ga. 440, 76 Am.Dec. 662; Pennoyer v. Neff, 95 U.S. 714, 723, 724, 24 L.Ed. 565; Arndt v. Griggs, 134 U.S. 316, 10 S.Ct. 557, 33 L.Ed. 918. Since it is the state, and not the courts created by the state, that is vested with such inherent power, the question is not what inherent authority the state has, but what authority it has conferred upon its courts. "It may be stated, as an incontrovertible legal proposition, that every power exercised by any Court, must be found in, and derived from the law of the land, and also be exercised in the mode and manner that law prescribes." Gray v. McNeal, 12 Ga. 424 (2). Accordingly, in order for a court of law to summarily seize property located within this state, belonging to a nonresident debtor, and subject it to a judgment in rem, the court would have to act under authority of some statute or of some existing rule of the common law. In like manner in order for a court of equity to thus seize and administer property of a nonresident debtor, it too must follow fundamental equitable principles conferring such authority, found either in a specific statute or in the established rules of equity recognized by the high court of chancery in England and continuing of force in this state. Thus we arrive at the conclusion, as expressed in Edwards Mfg. Co. v. Hood, supra, that the courts may administer the property in this state of a nonresident "in a proper case and upon proper pleadings, " that is to say, as and when they are authorized and empowered so to do. In an ordinary suit such as the one now before us, constructive service being insufficient to authorize the grant of either a judgment in personam or an injunction binding against a nonresident (Hart v. Sansom, 110 U.S. 151, 3 S.Ct. 586, 28 L.Ed. 101; 32 C.J. 373), the question is narrowed to a determination of whether a superior court, at law or in equity, is empowered to grant the relief in rem as prayed for.

Since the allegations and prayers of the petition sound in equity, it would be unnecessary to consider the validity of the proceeding as one at law, save for the settled rule, under the uniform procedure act of 1887 (Code, § 37-901), permitting both legal and equitable rights and remedies to be adjusted in a single superior court suit, with the result that a petition seeking ordinary relief in equity is not subject to general demurrer on the ground only that the plaintiff has a complete and adequate remedy at law. Sullivan v. Ginsberg, 180 Ga. 840, 847, 181 S.E. 163; De Lacy v. Hurst, 83 Ga. 223 (4-6), 9 S.E. 1052. If a petition sounding in equity sets forth a cause of action at law, it will not be dismissed for a lack of equity. If the suit is good as one at law, it is immaterial how it is labeled. But "the superior court has no more power or jurisdiction by the combination of courts of law and equity, than those two courts had before" the uniform procedure act. Broomhead v. Grant, 83 Ga. 451, 10 S.E. 116. Where a plaintiff alleges and proves such facts as entitle him to equitable relief, the court will enforce his equitable rights; but where, although he asks equitable relief, yet he alleges and proves only such facts as entitle him to strict legal rights, the court will enforce his legal rights but only according to the strict

[192 S.E. 194]

rules of law. Berrie v. Smith, 97 Ga. 782, 786, 25 S.E. 757. Such a case will be dealt with and controlled by the same legal principles which would have been applied had it been instituted as a suit at law. Bentley v. Crummey, 119 Ga. 911 (2), 47 S.E. 209. For these reasons the authority of the court as one at law will be first considered and determined.

The recent act approved March 30, 1937 (Ga.Laws 1937, p. 732), which in effect authorizes judgments in personam against nonresidents who use the highways of this state with their automobiles and injure persons while engaged in such operation, and which provides a method for personal service of summons on such users of the highways by service on the secretary of state as their attorney in fact, and otherwise as stated in the act, is in nowise pertinent to this case or any question here involved. The only statutory authority vested in the courts of law of this state to seize and subject the property of a nonresident debtor to a judgment in rem is contained in the attachment law. The Code, § 8-111, requires the plaintiff in attachment to give a specified bond. This is jurisdictional, and its absence renders the proceeding fatally defective. English v. Reed, 97 Ga. 477, 25 S.E. 325; Rogers v. Birdsall Co., 72 Ga. 133. The instant case, therefore, considered as one at law under express attachment statutes, wholly fails; and, as a proceeding at law without a bond against the property of the defendant, must fail, unless there exists some legal right under the principles of common law of present force in this state, which would authorize a legal procedure in rem without a bond.

The common and statute law of England, of force in this state on May 14, 1776, remains of force, so far as it is not incompatible with the Federal or the State Constitution or has not been modified by statute. Code, § 2-8503 (Const, art. 12 par. 3); Acts 1784, Cobb's Dig. p. 721, Prince's Dig. 570; Alexander v. Dean, 157 Ga. 280, 283, 121 S.E. 238; Harris v. Powers, 129 Ga. 74 (2), 58 S.E. 1038, 12 Ann.Cas. 475; Tucker v. Adams, 14 Ga. 548, 569, 570; Turner v. Thompson, 58 Ga. 268, 271, 24 Ann.Rep. 497. At common law, what right of judicial seizure existed to subject property to a debt or liability? The writ of attachment, as we know it, was "unknown to the Common Law." Mills v. Findlay, 14 Ga. 230, 232 (3); Clark v. Tuggle, 18 Ga. 604; Penoyar v. Kelsey, 150 N.Y. 77, 79, 44 N.E. 788, 34 L.R.A. 248. As our court has said, "At common law, all service had to be personal." Stuart Lumber Co. v. Perry, 117 Ga. 888, 889, 45 S.E. 251; Water Lot Co. v. Brunswick Bank, 30 Ga. 685, 686. Manifestly this was...