Pennsylvania R. Co. v. Rogers

• Decision Date: 21 March 1903
• Citation: 44 S.E. 300,52 W.Va. 450
• Parties: PENNSYLVANIA R. CO. v. ROGERS et al.
• Court: West Virginia Supreme Court

44 S.E. 300

52 W.Va. 450

PENNSYLVANIA R. CO. v. ROGERS et al.

Supreme Court of Appeals of West Virginia.

March 21, 1903

Submitted January 17, 1902.

Syllabus by the Court.

1. Garnishment is the exercise of a special and limited statutory power, the requisites of which are jurisdictional.

2. Although, in such proceeding, there is no actual manual seizure of property by the executing officer, it is in the nature of a proceeding in rem, and jurisdiction of the debt or property sought to be thereby subjected must be obtained else the court cannot pronounce judgment of condemnation against it.

3. Garnishment is a dual proceeding, moving against the garnishee in personam to compel him to answer and disclose what property and estate of the defendant he has in his hands and to hold the same subject to the order of the court, and against the property and estate itself to extinguish the right of the defendant in it by condemnation and appropriation of it to the satisfaction of the plaintiff's claim.

4. A nonresident, temporarily in the state, may be summoned and compelled to answer as garnishee, but if, upon his answer, it be established that he is a nonresident, he cannot be subjected to further proceedings in the cause, for want of jurisdiction, unless, when garnished, he have in the state property of the defendant in his possession, or be bound to pay the defendant money or deliver to him property within the state.

5. Foreign corporations and nonresident individuals stand upon the same footing in respect to garnishment, except that the former are subject to garnishment when doing business in the state in which the garnishment issues in such sense and to such extent as to have become domiciled therein.

6. A debt due from a foreign railroad corporation operating no railroad in this state, and doing no business here other than maintaining, jointly with other railroads, an agency relating to through freight service, and for the soliciting of freight for such company, to be handled on its lines without the state, is beyond the territorial jurisdiction of the courts of this state, and not subject to garnishment here.

7. The garnishee, in the eye of the law, is a mere stakeholder, a custodian of property or estate attached in his hands, and has no right to do any voluntary act to the prejudice of either the plaintiff or defendant in the action. He must let the law take its course, except that he may protect himself from jeopardy or injury by unauthorized acts and proceedings.

8. A garnishee cannot give jurisdiction of a debt due from him by his voluntary appearance, when not previously served with the order of attachment, nor when an attempted service is invalid.

9. Omission to show, in the return of service of an order of attachment upon a foreign corporation as garnishee, that the agent upon whom the service was made resides in the county in which he was served, renders the service invalid, and, in such case, the court obtains no jurisdiction of the res, for want of service on the garnishee.

10. Prohibition lies from a circuit court to a justice of the peace to restrain him from proceeding in an action when the subject-matter thereof is beyond his territorial jurisdiction, and also when, by reason of want of service or invalidity of service, he has not acquired such jurisdiction although, when he has jurisdiction of the subject-matter, and the question of his jurisdiction of the person depends upon some fact to be determined by him, his erroneous decision in favor of jurisdiction is only error, not subjecting him to prohibition.

11. In so far as Mahany v. Kephart, 15 W.Va. 609, and Stevens v. Brown, 20 W.Va. 450, hold that the exemption laws of another state have no extraterritorial force and will not be enforced by the courts of this state they are reaffirmed.

Error to Circuit Court, Ohio County; Thayer Melvin, Judge.

Action by the Pennsylvania Railroad Company against W. W. Rogers and others. Judgment for defendants, and plaintiff brings error. Reversed.

J. B. Sommerville, for plaintiff in error.

Caldwell & Caldwell, for defendants in error.

POFFENBARGER J.

This case involves the consideration of questions arising upon the invocation of the extraordinary legal remedy, prohibition, in restraint of the special and limited proceeding known as garnishment. As prohibition lies only to restrain a court or other tribunal from proceeding without jurisdiction, or in excess of its jurisdiction, and as attachment is a purely statutory proceeding, the questions presented are principally jurisdictional in character, and perspicuity demands an inquiry into the nature of both proceedings. This should be preceded, however, by a statement of the case.

W. W Rogers, a citizen of Ohio county, doing a detective and collection business, and having taken, by assignment, a large number of claims from persons residing in Pennsylvania against employés of the Pennsylvania Railroad Company, a foreign corporation, which claims that it does not own or operate any railroad or do any business in this state, instituted, before D. Z. Phillips, a justice of the peace of Ohio county, more than 400 suits against the said nonresident employés on the accounts so assigned, and made the said railroad company a garnishee in each of them. The service of process, as to the garnishee, was by delivering a copy of the order of attachment "to J. J. McCormick, agent of the said garnishee in charge of its business, in the city of Wheeling, in said county, there being no other person within the state of West Virginia upon whom said order of attachment can be legally served." In some of these cases the railroad company appeared specially for the purpose of objecting to the service of process upon it, and moved to be discharged because the order of attachment issued therein had not been properly or legally served upon it. After hearing the evidence and argument of counsel upon the motion, the justice overruled it. Then the garnishee filed its answer, admitting indebtedness, but claiming it was not liable as garnishee, for the following reasons: First, because the justice was without jurisdiction in said cause; second, because said Pennsylvania Railroad Company and the principal debtor in the action were both citizens of the state of Pennsylvania, and the money due was for wages earned by the defendant as an employé of the railroad company, under a contract between him and the railroad company in Pennsylvania, and was not, therefore, subject to garnishment in West Virginia; third, because the wages of the defendant were exempt from execution or forced sale under the laws of Pennsylvania, and could not be subjected to garnishment in the state of West Virginia. The garnishee, therefore, again asked to be discharged, but the motion was overruled, and judgment entered against the garnishee for the amount of the indebtedness admitted. The record here shows a transcript of the proceedings in only one of these cases, that of Rogers, assignee, against James R. Snyder. The bringing of these suits was commenced in July or August, 1901, and many judgments were rendered against the garnishee. On the 10th day of January, 1902, the Pennsylvania Railroad Company presented to a judge of the circuit court of Ohio county its petition, praying for a writ of prohibition to restrain Rogers and Phillips, and each of them, "from proceeding further in their said acts, doings, and proceedings, and from instituting any other or further proceedings against" the petitioner. "either in regard to the said claims of the said Rogers against" the petitioner "arising out of the assignment of claims to the said Rogers by any person, or against" the petitioner's "said employés residing in the said state of Pennsylvania." In addition to the facts hereinbefore set out, the petition contains the following averment: "Your petitioner does not own and does not operate any railroad or any part of a railroad in the county of Ohio, or in the state of West Virginia, and does no business in the said last-named state or county. There is, however, located in the said city of Wheeling, an agent of what is known as the 'Star Union Line,' which is an association of several railroads, formed and kept up for the purpose of facilitating the handling of certain freight business, in the city of Wheeling. The name of said agent is J. J. McCormick, and the only service which was had upon your petitioner in said suits brought before the said Phillips, justice as aforesaid, by the said Rogers, was had by serving copies of the orders of attachment issued in said cause upon said J. J. McCormick. Your petitioner is advised that the said J. J. McCormick is not your petitioner's agent, and that the said service of the said copies upon him is not such a service as should or will bind your petitioner in the said cases, and that therefore the said Phillips, justice as aforesaid, is without jurisdiction to render any decision, or enter any order or judgment, against your petitioner in the said cases." The petitioner further shows that some of the employés against whom these actions were brought had instituted chancery suits in Pennsylvania, seeking to restrain the railroad company, by injunction, from paying the judgments recovered by Rogers in Ohio county, and a transcript of the record of one of said equity cases, showing all the proceedings therein and the opinion of the judge in the cause, is filed as a part of the petition. A rule was awarded against Rogers and Phillips, returnable on the 16th day of January, 1902, which on said date was continued until the 1st day of February, 1902, when there was a final hearing, and the court discharged the rule, dismissed the petition, and gave costs against the petitioner, and the...