Palmer v. Bank of Sturgeon

• Citation: 218 S.W. 873,281 Mo. 72
• Parties: STANLEY PALMER, Appellant, v. BANK OF STURGEON
• Decision Date: 16 February 1920
• Court: United States State Supreme Court of Missouri

218 S.W. 873

281 Mo. 72

STANLEY PALMER, Appellant, v. BANK OF STURGEON

Supreme Court of Missouri

February 16, 1920

Appeal from Boone Circuit Court. -- Hon. David H. Harris, Judge.

Reversed and remanded.

Major J. Lilly and McBaine, Clark & Rollins for appellant.

(1) The judgment of the Tennessee court may be attacked in this proceeding by Palmer if that court had no jurisdiction as to him. Smith v. McCuthen, 38 Mo. 416; Latimer v Railroad Co., 43 Mo. 105; Pennoyer v. Neff, 95 U.S. 714; Marx v. Fore, 51 Mo. 69; Eager v Stover, 59 Mo. 87; Barlow v. Steele, 65 Mo 611; Bradley v. Welsh, 100 Mo. 268; Wilson v. Railroad Co., 108 Mo. 589; Forsyth v. Barnes, 228 Ill. 326, 10 Am. & Eng. Ann. Cases, 710; National Exchange Bank v. Wiley, 195 U.S. 257; Levin v. Gladstein, 142 N.C. 482, 55 S.E. 371, 32 L. R. A. (N. S.) 905. (2) The judgment was absolutely void as to Palmer. He was neither (a) personally served in Tennessee; (b) nor did he have any property in Tennessee; (3) nor did any one who could be reached by personal service in Tennessee, owe him any money. Flexner v. Faison, 248 U.S. 289; Knox Brothers v. E. W. Wagner & Co., 209 S.W. 638; Pennoyer v. Neff, 95 U.S. 714; Crim v. Crim, 162 Mo. 544; Insurance Co. v. Walden, 238 Mo. 49; New York Life Ins. Co. v. Dunlevy, 241 U.S. 518, 60 L.Ed. 1140; Shinn, Attachment and Garnishment, sec. 674; Wilson v. Railroad, 108 Mo. 589; Harris v. Balk, 198 U.S. 215; Douglass v. Phoenix Co., 138 N.Y. 209, 20 L. R. A. 118, 34 Am. St. 449; Lovejoy v. Albee, 33 Me. 414, 54 Am. Dec. 630; L. N. Ry. Co. v. Deer, 200 U.S. 176, 50 L.Ed. 426. (3) The Bank of Sturgeon, a Missouri corporation, was not subject to personal service in Tennessee. Goldie v. Morning News, 156 U.S. 518, 39 L.Ed. 517; Kendal v. American Automatic Loom Co., 198 U.S. 477; Printer v. Colorado Springs Ry. Co., 127 Mo.App. 248; Cabanne v. Graf, 87 Mo. 510. (4) The Tennessee court decided that the $ 440 was due from Klyce to the Bank of Sturgeon. The Tennessee court was then powerless to effect Palmer as the limit of its power was to reach a debt of a non-resident due from a resident of Tennessee, who was personally served with process. Jurisdiction over Klyce gave the Tennessee court the right only to condemn debts due from Klyce, to a non-resident. Jurisdiction over Klyce could not give the Tennessee court the right to reach a debt that a non-resident owed a second non-resident to whom Klyce was indebted. Harris v. Balk, 198 U.S. 216, 49 L.Ed. 1023; Wilson v. Railroad Co., 108 Mo. 589; Norvell v. Porter, 62 Mo. 309; New York Life Ins. Co. v. Dunlevy, 241 U.S. 518, 60 L.Ed. 1140; Douglass v. Phoenix Co., 138 N.Y. 209, 20 L. R. A. 118, 34 Am. St. 449. (5) Stanley Palmer is not bound by the decision of the Tennessee court impounding the $ 440 which that court found Klyce owed the Bank of Sturgeon as the Tennessee court had no jurisdiction over him, and so the Bank of Sturgeon, when it paid the $ 440 lost its own money due it from Klyce, and did not have taken away from it a debt which it owed Stanley Palmer. New York Life Ins. Co. v. Dunlevy, 241 U.S. 518, 36 S.Ct. 613, 60 Law. Ed. 1140; 30 Harvard Law Review, 86; Ruff v. Ruff, 85 Pa. St. 333; Poffer v. Graves, 26 N.H. 256; 2 Shinn Attachment, section 725.

Don C. Carter for respondent.

(1) The judgment of the Tennessee court impounding, by writ of attachment, the $ 440 found within the jurisdiction of the court, and condemning the debt due from Bank of Sturgeon to plaintiff (Palmer) to the extent of $ 440 only, is valid and regular under the Tennessee statutes, and entitled to full faith and credit in this State. Attachment, 6 Corpus Juris, pp. 30, 33, 35, 37; Barnhart v. Dollarhide, 186 S.W. 565; Cochrane v. Bank, 201 S.W. 575; Rothschild v. Knight, 184 U.S. 341; Norman v. Insurance Co., 237 Mo. 582; Garnishment, 20 Cyc. 978, 980, 1018, 1050; Chi. R. I. & P. R. Co. v. Sturm, 174 U.S. 710; B. & O. R. Co. v. Allen, 3 L. R. A. (N. S.) 608; Steer v. Dow, 20 L. R. A. (N. S.) 263; Harris v. Balk, 198 U.S. 215; B. & O. R. Co. v. Hostetter, 240 U.S. 624; N. Y. Life Ins. Co. v. Dunlevy, 241 U.S. 521; Pennington v. Fourth Natl. Bank 243 U.S. 271. The proceedings had in the Tennessee court, impounding the $ 440 by attachment, and condemning the debt defendant bank owed plaintiff Palmer, to the extent of $ 440 only, was not in violation of Section 1 of the Fourteenth Amendment to the Constitution of the United States, as depriving plaintiff of his property without due process of law. Plaintiff Palmer had due process of law. Pennington v. Fourth Natl. Bank, 243 U.S. 271; Cases cited supra.

BROWN C. Woodson, J., dissents.

OPINION

In Banc

BROWN, C.

This suit was instituted in the Court of Common Pleas of Boone County on September 2, 1916, to recover the sum of $ 428.63, the balance which plaintiff alleges in the petition to have been on deposit to his credit in the defendant bank on the day of August, 1916, which he then demanded, and payment of which was refused.

The answer admits that prior to that date the plaintiff had deposited the amount named in defendant's bank to be paid to him on demand, that on the date mentioned plaintiff demanded the same and that defendant refused payment thereof. The answer further alleges that the defendant was, at the date of said demand, and still is, entitled in equity to hold the said sum of money by reason of the following facts:

"That on or about the twenty-third day of March, 1915, plaintiff shipped to one G. T. Taylor, doing business as the Taylor Grain Company, of Memphis Tennessee, a car of ear corn, billed from Larrabee, Missouri, in Audrian County, to Paris, Texas, via the Chicago & Alto Railroad, and drew a draft on said Taylor Grain Company, with bill of lading and invoice attached, for $ 485.60, through the defendant Bank of Sturgeon and through the Union & Planters Bank & Trust Company of Memphis, Tennessee; said draft was dishonored by the said Taylor Grain Company at Memphis, Tennessee, and returned to the Bank of Sturgeon, for said plaintiff, by the Union & Planters Bank & Trust Company.

"Prior to the above shipment of corn, the plaintiff had sold and shipped some eight or nine cars of corn to the said Taylor Grain Company of Memphis, Tennessee, and had an arrangement with said company, whereby said company deposited with the Bank of Sturgeon the sum of five hundred dollars, to guarantee plaintiff that it would honor and pay all drafts drawn by plaintiff on said Taylor Grain Company, for cars of corn shipped to it by plaintiff. Some time prior to the shipment of said last car of corn, and on or about the seventeenth day of March, 1915, the Taylor Grain Company drew a draft on the defendant Bank of Sturgeon for said $ 500 deposit, and defendant paid same, presuming that the business relations between plaintiff and the Taylor Grain Company had ended, as it had been some time since plaintiff had shipped the Taylor Grain Company any corn; and defendant further states that at the time plaintiff drew said $ 485.60 draft on said Taylor Grain Company, it informed plaintiff that it had paid out said $ 500 to said company on its draft, some few days before.

"Just as soon as the draft for $ 485.60 as above mentioned was returned to Palmer through the defendant Bank of Sturgeon, plaintiff made complaint to defendant for having paid said $ 500 out, without first having notified him, and demanded of defendant that it take up said bill of lading and pay him the amount thereof, and threatened to sue defendant bank for said $ 485.60, if the bank did not pay him the same. Therefore, the defendant bank, desiring rather to try and get out whole on said car of corn, had plaintiff assign said bill of lading and invoice of said car of corn over to it, which plaintiff did on or about April 1, 1915, and on April 5, 1915, defendant paid plaintiff the sum of $ 485.60 therefor.

"Defendant bank then forwarded said bill of lading and invoice to one Henry A. Klyce, of Memphis, Tennessee, doing business under the name of Henry A. Klyce Company of Memphis, Tennessee, dealers in grain and grain products and authorized him to sell and dispose of said car of corn for it and for its account, which said company, after quite a while, did, realizing the sum of $ 440 therefor, losing a great deal on said corn, by reason of its inferior quality."

The answer then proceeds to state, in substance, that before the Klyce Company forwarded the $ 440 to the defendant, the Taylor Grain Company instituted suit by attachment against plaintiff in the chancery court of Shelby County, Tennessee, for damages in the sum of $ 908.83 for breach of warranty on other corn previously sold by plaintiff to said Taylor Grain Company, to which suit the defendant was made a party and was duly notified; that plaintiff was also notified by publication, but failed and refused to appear and defend same, by reason of which judgment was rendered against him for the amount demanded, and the said sum due from the Klyce Company to defendant was impounded and attached, by reason of which it was lost to defendant. The said sum of $ 440 was thereupon charged to plaintiff by defendant in his deposit account, leaving the same overdrawn in the amount of $ 11.37.

The plaintiff replied by general denial and also pleaded that the Tennessee statute under which the proceeding in the chancery court of Shelby County, Tennessee, was had, was void, in so far as it affected the rights of either plaintiff or defendant to the said sum of $ 440 due from the Klyce Company to the defendant, because it is in conflict with the provision of Section 1 of the Fourteenth Amendment to the Constitution of the United States "that no State shall make or enforce any law which shall abridge the privileges or immunities of citizens of...