Henrietta Mining Milling Co v. Gardner

• Decision Date: 20 February 1899
• Docket Number: No. 140,140
• Parties: HENRIETTA MINING & MILLING CO. v. GARDNER
• Court: U.S. Supreme Court

173 U.S. 123

19 S.Ct. 327

43 L.Ed. 637

HENRIETTA MINING & MILLING CO.

v GARDNER.

No. 140.

February 20, 1899.

Frank Asbury Johnson and W. H. Barnes, for appellant.

S. M. Stockslager and George C. Heard, for appellee.

Mr. Justice McKENNA delivered the opinion of the court.

This is an appeal from a judgment of the supreme court of the territory of Arizona affirming a judgment of the district court of the Fourth udicial district, in and for Yavapai county, for $12,332.08, in favor of appellee, and against appellant, who was plaintiff in error below. The action was upon an open account and a large number of assigned accounts. An attachment was sued out, and the mines and mining property of appellant company were seized. Judgment was rendered by default, and the property attached ordered sold.

The judgment is attacked on two grounds: (1) That there was no personal service on appellant; (2) that the attachment was void because the writ was issued before the issuance of summons.

It is conceded that the appellant is an Illinois corporation, and that there was no personal service upon it. Was the attachment issued in accordance with the statutes of Arizona? If it was not, the judgment must be reversed. Pennoyer v. Neff, 95 U. S. 714.

The record shows that the complaint was filed December 4, 1894; that on the 24th of that month affidavit and bond for attachment were filed, and the writ was issued. The return shows the seizure of the property on the 26th of December, the day summons was issued.

The Revised Statutes of Arizona of 1887 (chapter 1 of title 4) provided for attachments and garnishments as follows:

'40 (Section 1). The judges and clerks of the district courts and justices of the peace may issue writs of original attachment returnable to their respective courts, upon the plaintiff, his agent, or attorney, making an affidavit in writing, stating one or more of the following grounds:

'(1) That the defendant is justly indebted to the plaintiff, and the amount of the demand; and,

'(2) That the defendant is not a resident of the territory, or is a foreign corporation, or is acting as such; or,

'(3) That he is about to remove permanently out of the territory, and has refused to pay or secure the debt due the plaintiff; or,

'(4) That he secretes himself, so that the ordinary process of law cannot be served on him; or,

'(5) That he has secreted his property, for the purpose of defrauding his creditors; or,

'(6) That he is about to secrete his property for the purpose of defrauding his creditors; or,

'(7) That he is about to remove his property out of the territory, without leaving sufficient remaining for the payment of his debts; or,

'(8) That he is about to remove his property, or a part thereof, out of the county where the suit is brought, with intent to defraud his creditors; or,

'(9) That he has disposed of his property, in whole or in part, with intent to defraud his creditors; or,

'(10) That he is about to dispose of his property with intent to defraud his creditors; or,

'(11) That he is about to convert his property, or a part thereof, into money, for the purpose of placing it beyond the reach of his creditors; or,

'(12) That the debt is due for property obtained under false pretenses.

'41 (Sec. 2). The affidavit shall further state:

'(1) That the attachment is not sued out for the purpose of injuring or harassing the defendant; and '(2) That the plaintiff will probably lose his debt unless such attachment is issued.

'42 (Sec. 3). No such attachment shall issue until the suit has been duly instituted, but it may be issued in a proper case either at the commencement of the suit or at any time during its progress.

'43 (Sec. 4). The writ of attachment above provided for may issue, although the plaintiff's debt or demand be not due, and the same proceeding shall be had thereon as in other cases, except that no final judgment shall be rendered against the defendant until such debt or demand shall become due.'

Paragraph 649 provides that 'all civil suits in courts of record shall be commenced by complaint filed in the office of the clerk of such court.' Therefore, if paragraph 42 (section 3) was in force at the time the writ of attachment was issued, to wit, on the 24th of December, 1894, there is no doubt of the validity of the writ. But it is contended that the paragraph was not in force, bec use, it is claimed, it had been repealed by an act passed by the legislative assembly of the territory, approved March 6, 1891.

This act is entitled 'An act to amend chapter 1, title 4, entitled 'Attachments and garnishments." Rev. St. Ariz. 1887. Section 1 is as follows:

'Section 1. Paragraph 40, being section 1, chapter 1, title 4, Revised Statutes of Arizona, 1887, is hereby amended so as to read as follows:

'The plaintiff at the time of issuing the summons, or at any time afterward, may have the property of the defendant attached, as security for the satisfaction of any judgment that may be recovered, unless the defendant gives security to pay such judgment as in this act provided in the following cases:

'First. In an action upon a contract, express or implied, for the direct payment of money where the contract is made or is payable in this territory, and is not secured by any mortgage or lien upon real or personal property, or any pledge of personal property.

'Second. When any suit be pending for damages, and the defendant is about to dispose of or remove his property beyond the jurisdiction of the court in which the action is pending, for the purpose of defeating the collection of the judgment.

'Third. In an action upon a contract, express or implied, against the defendant not residing in this territory or a foreign corporation doing business in this territory.

'Sec. 2. Paragraph 41, being section 2, chapter 1, title 4, Revised Statutes of Arizona, 1887, is hereby amended so as to read as follows:

'Sec. 2. The clerk of the court or justice of the peace must issue the writ of attachment upon receiving an affidavit by or on behalf of plaintiff, showing—

'First. That the defendant is indebted to the plaintiff upon a contract, express or implied, for the direct payment of money, and that such contract was made or is payable in this territory, and that the payment of the same has not been secured as provided in section 1 of this act, and shall specify the character of the indebtedness, that the same is due to plaintiff over and above all legal set-offs or counter claims, and that demand has been made for the payment of the amount due; or,

'Second. That the defendant is indebted to the plaintiff, stating the amount and character of the debt; that the same is due over and above all legal set-offs and counter claims; and that the defendant is a nonresident of this territory or is a foreign corporation doing business in this territory; or,

'Third. That an action is pending between the parties, and that defendant is about to remove his property beyond the jurisdiction of the court to avoid payment of the judgment; and,

'Fourth. That the attachment is not sought for wrongful or malicious purpose, and the action is not prosecuted to hinder or delay any creditor of the defendant.

'Sec. 3. Paragraph 43, being section 4, chapter 1, title 4, Revised Statutes of Arizona, 1887, is hereby repealed.

'Sec. 4. Paragraph 47, being section 8, chapter 1, title 4, Revised Statutes of Arizona, 1887, is hereby amended by striking out the word 'original' where it occurs in the first line of said section.

'Sec. 5. Paragraph 50, being section 11, chapter 1, title 4, Revised Statutes of Arizona, 1887, is hereby amended by striking out the word 'repleviable' where it occurs in line five of said section.

'Sec. 6. All acts and parts of acts in conflict with this act are hereby repealed, and this act shall take effect and be in force from and after its passage.

'Approved March 6, 1891.'

The amending act is more than a revision of the provisions of the statute of 1887; it is a substitute for them. It, however, does not expressly repeal paragraph 42. Does it do so by implication? Expressing...