McPherson v. Matthews
| Decision Date | 24 May 1926 |
| Docket Number | 25716 |
| Citation | 143 Miss. 299,108 So. 494 |
| Court | Mississippi Supreme Court |
| Parties | MCPHERSON v. MATTHEWS et al. [*] |
1 GARNISHMENT. Nonresident creditor may attach in another state debt due and payable by nonresident to person within state where garnishment is authorized on attachment proceeding in such foreign state, where debtor resides therein, and is served with process under its laws.
A nonresident creditor may attach a debt due by a nonresident of this state to a person in this state in another state although the debt is payable in Mississippi, where garnishment is authorized upon attachment proceedings in such foreign state, and the debtor resides in such state and is served with process under the laws of such state.
2. INTERPLEADER. Where nonresident debtor, whose debt is payable in Mississippi, was garnished in state of his residence subsequent to valid assignment under laws of Mississippi debtor may file bill of interpleader in state of his residence, making parties claiming interest in debt parties thereto.
Where an attachment is sued out in another state, and the debtor served with garnishment in such state, who resides there, and the debt is payable in this state, and has been assigned validly under the laws of this state prior to the serving of the garnishment proceedings on the debtor, and where the debtor is in doubt as to whom he shall pay the debt to in such case, he may file a bill of interpleader in equity in such state making the parties claiming an interest in said debt, or right thereto, parties to the interpleader, so that one payment will discharge his obligation involved in such litigation.
3. EXECUTION. Where debt due parties in Mississippi was garnished in foreign state, and contract was to be performed in Mississippi, and was governed by its laws, suit by assignee of debt against debtor living in foreign state, but having business localized in Mississippi, may be prosecuted to judgment, but it is proper to stay execution until termination of litigation in foreign state.
Where an attachment was sued out in Tennessee, and a debt due parties in this state by residents in Tennessee is garnished in Tennessee, and where the contract was to be performed in Mississippi, and was governed by the laws thereof, as between the original debtor and an assignee of such debt, a suit by the assignee of such debt against the debtors who live in another state, but have a business localized in this state, may be prosecuted to judgment, but in such case it is proper to stay execution in this state until the termination of litigation in Tennessee.
HON. C. L. LOMAX, Chancellor.
APPEAL from chancery court of Quitman county, HON. C. L. LOMAX, Chancellor.
Attachment in chancery by Mrs. Lula McPherson against W. H. Matthews and another, doing business under the firm name of the M. & M. Plantation. Decree was rendered for complainant, but execution was stayed until final determination of litigation in another state, and complainant appeals. Affirmed.
Judgment affirmed.
Lowrey & Lamb, for appellant.
It should hardly require citation of authorities in substantiation of our contention that this contract between McPherson and Matthews & Mallory was a chattel, but see 5 A. & E. Encyc. of Law (2 Ed.), 1022, to the effect that the term chattel includes all kinds of property except real property, the note stating that it is more extensive than either "goods" or "effects" and that it includes choses in action.
Gregory v. Stagg, 60 Miss. 549, seems to be the first case decided in this state under these statutes. In that case a garnishment was issued on a judgment against the husband to a party indebted for furniture evidenced by note due to the wife.
The only authority that we find in Mississippi, or elsewhere, for a court to hold up the enforcement of its judgments or decrees on account of a litigation pending in another state involving the res in litigation is that execution should be suspended for a reasonable time, and where the record shows, as in this case, that reasonable time had long since passed we submit that a Mississippi litigant should not be delayed in the enforcement of her rights to await the pleasure of a Tennessee court even if she is a proper party to the Tennessee litigation.
But in the instant case we submit that on this record there should have been no suspension of the execution of the decree, even though the record exhibited from the Tennessee court did not show such utter want of diligence, if not a complete abandonment.
It must be remembered that this is not a litigation between the defendant in the garnishment proceeding and the plaintiff there, and that the appellant here is no party to that garnishment proceeding, and there is no pretense that she has ever in any way been brought into that case by publication or otherwise.
We think the decisions in this state and authorities elsewhere as to the duty of a court to hold up a judgment where there is a garnishment in a sister state apply only where the judgment here is in favor of the defendant in the garnishment proceeding.
The next question on the record from the chancery court of Shelby county is the validity and effect of the suit, improperly called a bill of interpleader in the chancery court of Shelby county, in which the appellant is named as a party defendant.
The Tennessee statutes, so far as we have been able to ascertain, provide that the garnishee may pay the money into court and escape further liability, but make no reference to interpleading. This, of course, would only apply as between the garnishee and his creditor and could not affect the rights of the third party.
Our view is that this alleged bill of interpleader as shown by the record of the case exhibited in this record, is a wholly unauthorized and void proceeding so far as the appellant here is concerned.
A bill of interpleader, or in the nature of an interpleader, is confined to cases where the complainant has any interest in the litigation in the court for the defendants to contest for. See Newsum v. Interstate Realty Co. (Tenn.), 278 S.W. 56; 15 R. C. L., p. 226, sec. 8; 11 Enc. Pl. & Pr., p. 455; McAlister v. Sanders (Miss. ), 65 So. 249; Deltains v. Bank (Miss.), 89 So. 817; Conn. Ins. Co. v. Tucker (R. I.), 91 A. S. R. 590, with elaborate note on p. 603 as to necessity for definiteness as to amount of claim; City of Montpelier v. Capital Savings Bank, 98 A. S. R. 834 (Vt.).
We submit that the appellant should not be held out of the use and employment of the money adjudged in the case at bar to be justly due her until she consents to submit herself to the jurisdiction of the Tennessee court and there join in a litigation which the record here exhibited shows is an utterly unwarranted proceeding.
The Federal Constitution gives equal credit to judgments of other states but it does not require courts to take notice of pending litigations in other states which are improperly brought and are not warranted by the law of the state in which they are pending.
It is true in Tennessee a garnishment holds the debt against an assignee of the debt where the debtor has no notice of the assignment at the time of the service of the garnishment. The reason for this, as often stated by the courts of Tennessee, is that the assignment is not complete until notice is given to the debtor.
Even if the Tennessee court had jurisdiction of both the assignee and the assignor of the debt, the attaching creditor could not avail of that rule in the case at bar for several reasons.
First, the assignment here was between residents of Mississippi of a debt due in Mississippi for services rendered in Mississippi, and the assignment was duly made and duly recorded in Mississippi. The validity and effect of the assignment are, therefore, governed by the laws of Mississippi. 5 R. C. L., p. 931, sec. 25; Ford v. Ins. Co. (Ky.), 99 A. D., 663 and note at 672; Briggs v. Latham (Kans.), 13 P. 393; Unt v. Standart (Ind.), 77 A. D. 79 and note on p. 87 as to place of indorsements; Cannady v. R. R. Co. (N. C.), 118 A. S. R. 821; Cleveland v. Lang (N. H.), 68 A. S. R., 675; Polson v. Stewart (Mass.), 57 A. S. R. 452; Milliken v. Pratt (Mass.), 28 Am. Rep. 241; Fenton v. Edwards (Cal.), 77 A. S. R. 141.
Second, the debtor in this case did have notice of the assignment by its being placed of record, and the evidence shows also that when the contract was entered into, it was understood that this contract was to be assigned and J. J. McPherson demanded certain insertions in the contract whereby the money was to be paid either to him or to his assignee.
It is not only the law generally that the locus contractus governs in assignments as well as other contracts as shown by the authorities cited above, but this is expressly recognized and ruled by the courts of Tennessee. Allen v. Bain (1858), 39 Tenn. 101; Newsom v. Hoffman, 124 Tenn. 370.
There is no room for any contention that the assignment of the contract in the case at bar was fraudulent as against creditors, for this court has expressly held in the case of Buckley v. Dunn, 67 Miss. 710, that creditors have no interest in such contracts and no claim on the personal services of a husband which prevents him from giving them to his wife, whether with or without consideration valuable at law.
Whatever might be the holding in Tennessee, this is the law in Mississippi and it must govern this case whether tried in Mississippi or Tennessee. Not only is this true, but the rights of the parties have now been adjudged and settled by the Mississippi court which had jurisdiction and no judgment had theretofore, and we might say has not yet, been rendered by the Tennessee court, and this judgment of the Mississippi court would...
To continue reading
Request your trial