Harvey v. Great Northern Ry. Co.
| Decision Date | 07 July 1892 |
| Parties | J. D. Harvey v. Great Northern Ry. Co |
| Court | Minnesota Supreme Court |
June 27, 1892, Submitted on Briefs
Appeal by defendant, the Great Northern Railway Company, from a judgment of the Municipal Court of the City of Minneapolis Elliott, J., entered March 4, 1892.
The defendant was on November 23, 1891, indebted to one A Zellar, a freight train conductor on its railroad in Montana $ 95.25 for services. Zellar was at the same time indebted to John S. Truscott of Montana, in the sum of $ 79.50. On that day Truscott commenced an action against Zellar before a justice of the peace in Montana to recover this debt, and attached Zellar's claim against the Great Northern Railway Company. On December 4, 1891, Zellar assigned his claim to the plaintiff, J. D. Harvey, who brought this action against the Railway Company to recover the money. Defendant answered setting up the Montana attachment suit in bar. Plaintiff had judgment, and defendant appeals.
Benton Roberts & Brown, for appellant.
Willis McDowell, for respondent.
The question is whether, upon the facts found, the pendency of a prior action in Montana, in which a debt had been attached in the hands of defendant as garnishee, was available by way of answer to a suit brought in this state by the defendant in the attachment (or his assignee) to recover the same debt.
The defendant is a corporation organized under the laws of this state, in which its headquarters and general offices are situated, but it owns and operates a line of railway extending into and through the state of Montana; and for that reason is, by the laws of Montana, for the purposes of suit, including proceedings in attachment and garnishment, deemed a resident of that state; and service of process upon it may be made by service upon any ticket or other agent in the state. The laws of that state also provide for the attachment of the property of any nonresident, including debts due him, by service of a copy of the writ and notice of the attachment upon the party owing the debt, and by service of the summons upon the nonresident defendant by publication; the judgment and execution thereon, in case the defendant makes no appearance, to run against the property attached.
The original creditor (plaintiff's assignor) is a nonresident of Montana, and no place of payment of the debt due him from the defendant was named.
The attachment suit in Montana was brought by a resident of that state, and the proceedings have been in all respects in conformity to its laws, and the action is still pending and undetermined, and the attachment in full force. The original creditor (the defendant in the attachment) has never appeared in that action, and the summons therein has been served on him by publication only.
The contention of plaintiff is that the proceedings in the court of Montana are void for want of jurisdiction, for the reason that the debt due from the plaintiff's assignor had no situs in that state, and consequently was incapable of being attached there.
The statement of the following propositions, which we deem well settled, will be sufficient for the purposes of this appeal:
1. While, by fiction of law, a debt, like other personal property, is for most purposes, as, for example, transmission and succession, deemed attached to the person of the owner, so as to have its situs at his domicile, yet this fiction always yields to laws for attaching the property of nonresidents, because such laws necessarily assume that the property has a situs distinct from the owner's domicile. For such purpose a debt has a situs wherever the debtor or his property can be found. Wherever the creditor might maintain a suit to recover the debt, there it may be attached as his property, provided, of course, the laws of the forum authorize it. Embree v. Hanna, 5 John. 101; Blake v. Williams, 6 Pick. 285-315; Lewis v. Bush, 30 Minn. 244, (15 N.W. 113;) Drake, Attachm. § 597.
2. Neither is it material that the debt was not made payable in Montana. It was a debt from the defendant everywhere. The original creditor might have maintained a suit for it in Montana, and therefore the debt might be attached there. Blake v. Williams, supra; Drake, Attachm. § 597.
3. The pendency of a prior action by foreign attachment in another jurisdiction, which binds the debt, may always be set up by way of defense to a suit by the defendant in the attachment to recover the same debt. This constitutes an exception to the general rule that lis pendens in a foreign court is not a good plea. An attachment is in the nature of proceedings in rem, the res being the debt or other property attached, and a lis...
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