J.A. Shuttleworth & Co. v. J. Marx & Co.

• Decision Date: 04 February 1909
• Citation: 159 Ala. 418,49 So. 83
• Parties: J. A. SHUTTLEWORTH & CO. v. J. MARX & CO.
• Court: Alabama Supreme Court

49 So. 83

159 Ala. 418

J. A. SHUTTLEWORTH & CO. v. J. MARX & CO.

Supreme Court of Alabama

February 4, 1909

Appeal from City Court of Selma; J. W. Mabry, Judge.

Action by J. Marx & Co. against J. A. Shuttleworth & Co. Judgment for plaintiffs and defendants appeal. Affirmed.

Pettus Jeffries & Pettus, for appellants.

H. F Reese, for appellees.

McCLELLAN J.

Marx &amp Co. commenced this action against Shuttleworth & Co., a nonresident of the state of Alabama, by causing the issuance of an attachment, which took the form of a summons to A. A Davidson and A. C. Thomas, both being residents of the state of Alabama, to answer as garnishees. Thomas, it appears, did not answer. Davidson's answer disclosed an indebtedness to the defendant, and he paid the sum, admitted to be due, into the court. The defendant (appellant) appeared specially and filed its plea to the jurisdiction of the court, alleging that its residence was in the state of Kentucky, that it had not been personally served with process, that Davidson was not possessed in Alabama of any effects of the defendant subject to attachment, that the indebtedness admitted in his answer was for goods sold and delivered to Davidson in Kentucky, that such debt was payable at Louisville, in that state, and not in Alabama, and that attachment had not been levied on any property of the defendant in Alabama. The plaintiff's (appellee's) demurrer to this plea was sustained, and the errors assigned on that ruling present one of the two legal inquiries to be determined.

The amended complaint, filed, without objection, after demurrer sustained, styles the action thus: "J. Marx & Co. v. J. A. Shuttle-worth & Co.," and thereafter in the complaint these parties are referred to only as "plaintiffs" and "defendant." Counsel appeared and, subsequent to the amendment, filed a plea of the general issue for the defendant. The point is taken that, since no proof was made of the partnership character of the defendant, the judgment is erroneous. If, to determine the capacity in which the defendant was impleaded, we may look to the affidavit for the writ (Simmons v. Sharpe, 138 Ala. 451, 35 So. 415), the defendant was sued as a partnership; and assuming that that capacity is imported, though not expressly averred therein, into the complaint as amended, we think that under the plea filed for the defendant the plaintiffs were relieved of the necessity of proving the capacity in which the defendant was sued. This is the rule prevailing as to corporations, and we see no good reason to deny its application to cases where the action is against an entity described as a partnership. Sou. Ry. Co. v. Hundley, 151 Ala. 378, 44 So. 195. The Cases of Mudge v. Treat, 57 Ala. 1, and Russell v. Bellinger, 146 Ala. 679, 40 So. 132, cited for appellant, were instances where the liability of individuals alleged to compose a firm or partnership was sought to be established by reason of their averred connection with the firm or partnership. Here the action is against the entity as such, and does not seek a judgment in the first instance against the individuals composing the concern. The judgment is not subject to the objection stated.

All of the Justices, except the writer, affirm the ruling of the court below in sustaining the demurrer to the plea to the jurisdiction upon the authority of Planters' Chemical & Oil Co. v. Waller & Co. (at the present term) 49 So. 89. The writer bases his opinion in affirmance of the ruling below on the plea to the jurisdiction upon the considerations to be stated.

An investigation of the decisions of this court will disclose that two views have either been declared or enforced with respect to the power of courts in this state to bindingly deal, by means of garnishment, with a debt due a nonresident, not personally served nor appearing, through an appropriation of that debt, and the consequent discharge of the original debtor, to the satisfaction of a demand of a creditor of such nonresident creditor. One of these theories proceeds on the idea that a debt has its situs, unless otherwise stipulated, at the domicile of the creditor, and hence, where the creditor is a nonresident, there could be no property of the nonresident creditor within this state subject to the control of our courts. The other theory, though not amplified in reason in the decision to be referred to, must necessarily proceed on the idea that jurisdiction of the court issuing the attachment, in the nature of garnishment, to appropriate, as before stated, the debt due to a nonresident creditor, is acquired by juridical power over the person of the garnishee (original debtor), upon the assumption that, for purposes of garnishment, such original debtor holds property of his nonresident creditor, and therefore jurisdiction of the garnishee draws to the court issuing the writ jurisdiction of his nonresident creditor to the extent of condemning the debt involved.

The first stated theory is supported by L. & N. R. R. Co. v. Dooley, 78 Ala. 525; A. G. S. R. R. Co. v. Chumley, 92 Ala. 317, 9 So. 286; L. & N. R. R. Co. v. Nash, 118 Ala. 477, 23 So. 825, 41 L. R. A. 331, 72 Am. St. Rep. 181. The case of L. & N. R. R. Co. v. Steiner & Lobman, 128 Ala. 353, 30 So. 741, is not applicable to the case at bar, in the light of either of the theories stated, for the reason that there the garnishee was brought within the jurisdiction of the court. However, it might be argued, with some show of plausibility, that this case reaffirms the broad doctrine of the Dooley Case and its successors. The second stated theory is supported by our case of Ga. & Ala. R. R. Co. v. Stollenwerck, 122 Ala. 539, 25 So. 258. There the garnishee was correctly held to be an Alabama corporation, though also chartered in Georgia; but the defendant Smith was a nonresident, and the court affirms the debt to Smith to have been subject to garnishment, notwithstanding the debt may have been created in another state, and notwithstanding Smith may have been a nonresident of Alabama. It is true that immediately following this ruling the court declares the doctrine of situs of a debt as that doctrine is announced in the Dooley, Chumley, and Nash Cases, supra, and also cites E. T., V. & G. R. R. Co. v. Kennedy, 83 Ala. 462, 3 So. 852, 3 Am. St. Rep. 755. In the opinion in this last-named case it is said that "debts have no local situs, but are suable in any country or locality where the debtor's person may be found." The quoted expression is criticised in Chumley's Case, and is there interpreted to mean no more than that debts "have no locality as to suability." It is apparent, as is said in the note to Goodwin v. Claytor, 67 L. R. A., at page 217, that the ruling in Stollenwerck's Case, declaring the right to subject, by garnishment, the debt due the nonresident creditor, not appearing nor personally served, is a non sequitur from the doctrine affirmed as upon the authority of the Dooley and Chumley Cases.

It is thus seen that with us the general doctrine that personal property has its situs at the domicile of the owner--the creditor--has an exception ingrafted upon it if the Stollenwerck Case is sustained, because, in the absence of appearance by a nonresident, or of personal service on him, jurisdiction to deal with the property in any court of a nonresident can only be acquired by lawfully secured control over property belonging to him. Reconciliation of these divergent theories, before stated, is obviously impossible, and to the one or the other this appeal compels a declaration of the adherence of this court. In this state of the law as pronounced by this court counsel for appellees insists that we should adopt the latter theory, especially in view of the fact that the Supreme Court of the United States, in Harris v. Balk, 198 U.S. 215, 25 S.Ct. 625, 49 L.Ed. 1023, following the principle declared by that court in C., R.I. & P. Ry. v. Sturm, 174 U.S. 710, 19 S.Ct. 797, 43 L.Ed. 1144, holds to the theory that jurisdiction of the property of a nonresident creditor is acquired, in garnishment proceedings, by service of that character of process on the original debtor, even when such debtor is merely temporarily within the jurisdiction of the court issuing the writ of garnishment; and, from this fact, counsel for appellees urge that justice and fairness to our own citizens, as well as the harmonious and nondiscriminate application of our attachment laws, demand the approval of this doctrine by this court, rather than a recurrence to the doctrine to be found announced in our Dooley, Chumley, and Nash Cases, supra. Counsel for appellant take the position that Harris v. Balk, supra, is, in fact, based upon the "full faith and credit" clause of the Constitution of the United States, and that the ruling is predicable only upon the Maryland attachment laws under which the character of assumption of jurisdiction present in the Harris-Balk Case is allowable, whereas under our statutes, in such cases, as applied in the Dooley, Chumley, and Nash Cases, an interpretation by which the courts of the United States are bound, garnishment is legally ineffective to subject a debt due a nonresident by reason of jurisdiction only, of our courts, over the debtor of that nonresident. We think this fairly states the contention of counsel for appellant, with an exception to be later mentioned.

We cannot concur in the view of counsel for appellant in their interpretation and in the effect of Harris v. Balk. Harris and Balk were residents of North Carolina, and Harris was indebted to Balk. Epstein, a resident of Maryland, was a creditor of Balk. Epstein, to collect his debt, sued Balk in Maryland, and a writ of garnishment was served on Harris, who was temporarily in Maryland. There...