Myer v. Liverpool, London & Globe Ins. Co.

• Decision Date: 25 June 1874
• Citation: 40 Md. 595
• Parties: THOMAS J. MYER and others v. THE LIVERPOOL, LONDON AND GLOBE INSURANCE COMPANY, Garnishee of G. W. BITTINGER, et al., and NATHAN EISENDRATH, Claimant of the fund attached.
• Court: Maryland Court of Appeals

40 Md. 595

THOMAS J. MYER and others v. THE LIVERPOOL, LONDON AND GLOBE INSURANCE COMPANY, Garnishee of G. W. BITTINGER, et al., and NATHAN EISENDRATH, Claimant of the fund attached.

Court of Appeals of Maryland

June 25, 1874

APPEAL from the Superior Court of Baltimore City.

The facts of the case are sufficiently stated in the opinion of the Court.

The cause was argued before BARTOL, C.J., STEWART, GRASON and MILLER, J.

F P. Clark and Charles Marshall, for the appellants.

Chapter 471 of the Acts of Assembly, passed at the session of 1868 prescribes the law now in force relative to corporations both domestic and foreign. Sections 210 and 211 provide that suit may be brought against any corporation not incorporated under the laws of this State for " any cause of action," by a citizen of the State, and " process in such suits may be served as provided in section 210;" and sec. 212 is still more definite providing for reaching a corporation that may have withdrawn its agent, and for serving "any writ or process issuing from the Courts of this State."

The language here used is sufficiently comprehensive to embrace an attachment preceding "any suit for any cause of action in which any writ or process issues from a Court of this State."

In Paul vs. State of Virginia, 8 Wallace, 168, (1868,) it is held that a State can impose any condition as a condition precedent to the admission of a foreign corporation to exercise its franchises in the State; and by this statute no unreasonable exaction is made. It only provides that the stranger sojourning with us shall not enjoy privileges denied to our own citizens. It would therefore seem to be clear that the garnishment was properly made, and that the Court below should have sustained it. But were this doubtful, ch. 388, sec. 33 of the Act of Assembly, passed in 1872, would seem to have dispelled any such doubt. The wording of this Act is that "no insurance company, not of this State, shall do business in this State until it has filed with the Insurance Commissioner a written stipulation, duly authenticated by the company, agreeing that any legal process affecting the company, served, &c., shall have the same effect as if served personally, within this State,"--and in compliance with this statute, the letter of attorney was executed and filed as required. Language could not be more explicit; and as the Court of Appeals has decided (Boyd vs. Ches. and Ohio Canal Co., 17 Md., 195,) that the writ of garnishment is a "process," surely, it cannot be denied that by the terms of this statute any legal process affecting the company, must embrace a writ of this nature.

Innes Randolph and Edward Otis Hinkley, for the appellees.

There was no error in the opinion and judgment of the Court.

A non-resident cannot be subjected to garnishment unless when garnished, he have, in the State where the attachment is obtained, property of the defendant, or be bound to pay to the defendant money or deliver him goods at some particular place in that State. The same principle, it has been repeatedly decided, applies to the garnishment of a foreign corporation. Drake on Attachments, secs. 474 to 477 inclusive, and cases there cited; Gold vs. Housationic R. R., 1 Gray, 424; Danforth vs. Penny, 3 Metcalf, 564.

The Act of 1868, ch. 471, sec. 211, provides that suits may be brought against a foreign corporation exercising franchises in this State, by a resident of this State, for any cause of action; and by a non-resident plaintiff when the cause of action has arisen or the subject of the action shall be situated in this State.

But the liability of the foreign corporation to the resident plaintiff must be a direct liability, for which it can be sued directly by the resident plaintiff. The present case is an attempt to reach the foreign insurance company, through the non-resident defendants, Bittinger & Bro. The test question is, could Bittinger & Bro. have maintained a suit in Maryland against this foreign corporation on these policies issued to them in Chicago? If Bittinger could not, then the plaintiffs could not. For in every attachment case there are two issues to be tried.

1. The indebtedness of the defendant to the plaintiff.

2. Whether or not the garnishee is indebted to the defendant. Kidder vs. Packard, 13 Mass., 81; Smith vs. Boston Railroad, 33 N. H., 342; Jones vs. Winchester, 6 N. H., 497; Mackwith vs. Glasgow & Southwestern Railway Co., 8 Exchequer, 149; Hart vs. Anthony, 15 Pick. 445; 5 English Reports, (Am. Reprint;) Camden Rolling Co. vs. Swede Iron Co., 32 New Jersey, 15; Smith vs. Mutual Life Ins. Co., 14 Allen, 336; Watson vs. Bourne, 10 Mass., 343.

If the doctrine contended for by the appellants were allowed, we might have imported into the Courts of this State litigation from all over the world.

This very insurance company effects insurances on warehouses in the City of London, and we might by similar process of attachment by a citizen of Maryland against an assured London merchant, be obliged to try the question of whether the company was liable for the loss sustained in a London fire. This certainly was never intended by the Legislature.

The scope of the power of attorney filed with the Comptroller of the Treasury of this State, under Act 1870, ch. 433, is only for the purpose of having an agent in this State upon whom legal process can be served, it cannot enlarge the liability of the company, or give jurisdiction to our Courts as to contracts, upon which it would not otherwise be liable to be sued in Maryland.

BARTOL C.J., delivered the opinion of the Court.

The appellants, citizens of Maryland, sued out of the Superior Court of Baltimore City, an attachment on warrant against G W. Bittinger & Brother as non-residents of Maryland, and who were residents of Chicago; and caused the attachment to be...