Hall v. Milligan

• Decision Date: 15 May 1930
• Docket Number: 4 Div. 466.
• Parties: HALL ET AL. v. MILLIGAN.
• Court: Alabama Supreme Court

128 So. 438

221 Ala. 233

HALL ET AL. v. MILLIGAN.

4 Div. 466.

Supreme Court of Alabama

May 15, 1930

Suit by T. A. Hall and another against G. F. Milligan, as administrator of the estate of R. A. Campbell, deceased. From a decree sustaining a demurrer to the bill as amended complainants appeal.

Reversed rendered, and remanded.

Appeal from Circuit Court, Covington County; Emmet S. Thigpen Judge.

A Whaley, of Andalusia, for appellants.

A. R. Powell, of Andalusia, for appellee.

FOSTER J.

Appellants filed a bill in equity to redeem personal property from an equitable mortgage. Some of it consisted of what is called range cattle duly marked, but allowed to live upon the open lands of Florida. Some of the cattle was alleged to be in Covington county, Ala. The mortgage was executed in Covington county, Ala., and the parties to it lived there. An amendment to the bill alleged that prior to the filing of the suit in Covington county, Ala., by appellants, the respondent filed a bill in chancery in Florida to foreclose the mortgage and appellants were named as parties respondent to that suit. In said suit in Florida the complainant in it obtained the issuance of a writ of attachment. The attachment writ was levied upon the range cattle in Florida. In said suit and apparently after appellants had filed their bill to redeem, notice by publication was given to them as respondents. It is also alleged that process issued by the Florida court was served upon appellants, but that they made no appearance in said court, and "have not waived the right to have the subject matter of this suit, and the matters incident thereto, determined by this court in this cause." The date of the service of that process is not stated. Appellants in an amendment prayed for an injunction against the prosecution of the Florida suit. A temporary injunction was ordered and issued and executed.

At a later date the court sustained demurrer to this bill as amended. The grounds of demurrer only went to the equity of the bill as a whole. Thereafter another amendment was filed alleging that notwithstanding the injunction, complainant in the Florida suit continued to prosecute it, and obtained a decree under which the cattle in that state were sold; that this was a willful and intentional violation of the injunction; and that appellee should be required to place appellants, as complainants, in statu quo, and should be precluded from defending this cause until he should purge his wrong, and be in position to come into the cause with clean hands. There was no special prayer as a part of this last amendment.

Upon the same grounds of demurrer being interposed to the bill as thus amended, the court entered a decree sustaining them, and the appeal is from that decree.

The general rule is that a suit in equity to foreclose a chattel mortgage in transitory and not local, and it is ordinarily immaterial to the jurisdiction of the court where the property may be if the court has jurisdiction of the defendant. Jones on Chattel Mortgages (5th Ed.) § 782; 11 Corpus Juris, 721. Of the nature of a foreclosure suit, 3 Jones on Mortgages (8th Ed.) § 1841, has the following statement: "A foreclosure suit in its usual form is partly an action in rem, for the seizure and sale of the property, and partly an action in personam, for the ascertainment of the debt of the mortgage debtor, and obtaining a personal judgment against him. When no personal judgment is sought the suit is essentially a proceeding in rem, and service by publication, when this is allowed by statute, is sufficient to give jurisdiction." To the same effect is the text of 42 Corpus Juris, 29, § 1525. It appears to us that the above statement is obviously correct, in suits for the foreclosure of mortgages on either real or personal property.

The general rule is that the courts of one state may take jurisdiction of a transitory cause of action originating in another state, when defendant has been locally found and served, although both parties are at the time domiciliary residents of the foreign state. Weaver v. A. G. S. R. Co., 200 Ala. 432, 76 So. 364. (Now controlled by statute in Alabama, section 5681, Code.) This prior to the statute had certain limitations pertaining to foreign corporations. Dozier Lbr. Co. v. Smith, etc., Co., 145 Ala. 317, 39 So. 714; Jefferson Island Salt Co. v. E. J. Longyear Co., 210 Ala. 352, 98 So. 119.

It is also, of course, well understood that a court of equity will entertain a bill to redeem personal property from a mortgage. Harmon v. Dothan Nat. Bank, 186 Ala. 360, 367, 64 So. 621; Zadek v. Burnett, 176 Ala. 80, 57 So. 447; 11 C.J. 739.

As we have pointed out, there is no ground of demurrer going to that aspect of the bill which sought an injunction, nor which sought to require appellee to purge himself of an alleged contempt or to make restitution as a condition to interposing a defense to the suit. The several grounds of demurrer were addressed to the bill as a whole, and challenge its equity.

As we interpret the allegations of the amended bill, it shows that the suit in Florida is a proceeding in rem. It is not alleged that a personal decree was sought or obtained; but whether so or not, and though the proceedings may be valid, it does not follow that appellants may not have their suit in Alabama for a redemption. ...