Perry v. Young
| Decision Date | 01 February 1916 |
| Citation | 182 S.W. 577,133 Tenn. 522 |
| Parties | PERRY ET AL. v. YOUNG ET AL. |
| Court | Tennessee Supreme Court |
Certiorari to Court of Civil Appeals.
Action by Thomas A. Perry and others against Frank Young and others. Certiorari to review a judgment of the Court of Civil Appeals overruling an order of the chancery court sustaining a demurrer to the bill. Affirmed and remanded.
Jeff McCarn and Pendleton & De Witt, all of Nashville, for plaintiffs.
W. L Granbery and H. E. Palmer, Jr., both of Nashville, for defendants.
The bill in this case was filed in the chancery court at Nashville on the 25th of September, 1913, by Thomas A. Perry and his sister Minnie L. Perry, and his sister Betsie Bostick and her husband, W. E. Bostick, against Frank Young and his wife, Mattie Young, and the Mutual Benefit Life Insurance Company of New Jersey.
The bill alleged, in substance, that complainant Thomas A. Perry some time before the occurrence complained of, had caused to be issued to him a policy of life insurance in the sum of $2,000 on his life, payable to himself; that he had assigned this policy to his mother; that the purpose and understanding between him and his mother was that this assignment should be so worded as that the policy should belong to him in case she died before his death; that by oversight this latter provision was left out; that he had sought recently to borrow money from the insurance company on this policy, but it declined to lend unless all of the distributees of his mother should consent to it; that he endeavored to get the defendants Frank Young and wife to agree, as required by the insurance company, but they declined to do so. The bill alleges, in effect, that the complainants and the defendants represent all of the distributees of the deceased mother. The purpose of the bill is to have the policy reformed so as to conform to the original agreement for the assignment made between the complainant Thomas and his mother. The bill charged that the present interest of Mrs. Young, the granddaughter of complainant's deceased mother, would only be $100, and asked and obtained an attachment, and caused the same to be levied on that interest. A publication was ordered and made for the said Frank Young and wife which indicated the matter in controversy, that is, the policy of insurance, giving its number and the name of the company that issued it, so that the notice showed the matter about which the litigation was projected. The insurance company accepted service of the bill through its accredited agent, the insurance commissioner. This company then filed a demurrer making the point that the court had not acquired jurisdiction of Young and wife, and therefore its decree would not protect the insurance company; the point being this: That those parties could not be made defendants by publication, but that personal service would be required to bind their interest. The bill shows that they are residents of Texas, and, of course, personal service is impossible. They have not entered their appearance, but as to them the bill stands on the order of publication and the publication thereof.
The chancellor sustained the demurrer filed by the insurance company. On appeal to the Court of Civil Appeals that court overruled the chancellor. The case was then brought to this court on the writ of certiorari, and the ground of demurrer before mentioned urged in the chancery court and in the Court of Civil Appeals is urged again here.
We think the Court of Civil Appeals reached the right conclusion. No personal judgment is sought against Young and wife, and none could be rendered against them on publication. The court, however, has before it the insurance company that issued the policy, the complainants Thomas and his two sisters, who represent three of the four distributees of the deceased assignee, and Mrs. Young, the fourth distributee. The court also has within its control the policy of insurance which is the legal evidence of the claim against the insurance company, and the assignment on the back of it, and has the res itself, the claim against the insurance company through having the latter company before it. The policy is not actually exhibited with the bill, but it appears from the allegations of the latter that the property is in the possession of the complainant Thomas A. Perry, and he has submitted himself to the jurisdiction of the court, and it is within its power at any moment to order the actual filing of the policy in the cause.
The court, thus having control of the res, can settle the status and rights of the parties with respect to the insurance policy, although one of the persons interested therein, under the assignment as it now stands, is a nonresident, and made a defendant only by publication. Our statute (Shan. Code, § 6115) provides that suit may be instituted wherever any material defendant is found, unless otherwise provided by law. The insurance company in the present case was a material defendant found in Davidson county. Section 6121, subsec. 4, as to bills against nonresidents, provides that they may be filed in the district or county in which the cause of action arose or the act on which the suit is predicated was to be performed, or in which the subject of the suit or any material part thereof is. Subsection 5 provides that, whenever attachment of property is allowed in lieu of personal service of process, the bill may be filed in the county or district in which the property, or any material part thereof sought to be attached is found at the commencement of the suit. Section 6162 declares that personal service of process on a defendant in a court of chancery is dispensed with when such defendant is a nonresident of the state. The following sections direct how the fact of nonresidence is to be made known, and the order of publication made, and how long the order shall be published, what it shall contain, etc. No question is made on these technical matters.
The present case belongs to the class of quasi proceedings in rem. Such proceedings are sufficiently described in 23 Cyc. 1410, by the author of Black on Judgments, in the following language:
"Judgments dealing with the status, ownership, or liability of particular property, but which are intended to operate on these questions only as between the particular parties to the proceeding, and not to ascertain or cut off the rights or interests of all possible claimants, are so far in rem that jurisdiction may be acquired by the seizure or control of the court over the res, together with reasonable constructive notice to parties defendant, but, unlike judgments strictly in rem, they are binding only upon the parties joined in the action, and thus notified, and have no effect upon the rights or liabilities of strangers."
One case in our Reports bearing a pretty close analogy to the present one is that of Wilcox v. Morrison, 9 Lea (77 Tenn.) 700. In that case it appeared that Wilcox had executed a trust deed in the state of Virginia conveying real and personal property in that state, and also including therein a judgment which he had in Hawkins county, Tenn., on one Netherland. After litigation had progressed for considerable time in Virginia, Wilcox came to Tennessee and filed his bill against Netherland, a resident of Tennessee, who was the debtor in the judgment, and also certain of his creditors who resided in Virginia, and the trustee under the Virginia mortgage who likewise resided there. The bill charged that the debts had been practically settled in Virginia, and that the Tennessee judgment belonged to the complainant Wilcox. The trustee and one of the creditors, residents of Virginia, demurred because the trustee and effects were in Virginia, and the cause was being administered in that state. The demurrer was overruled. Here the court had control of the res, the judgment, by having before it the plaintiff in the judgment, and also the defendant, and proceeded to settle the rights of the parties thereunder. It seems from the report of the case that the parties subsequently answered the bill, and so submitted themselves to the jurisdiction, but the overruling of the demurrer indicated the view the court had as to its right to settle the status of the parties with respect to the judgment, even against nonresidents.
The case of Amparo Mining Co. v. Fidelity Trust Co., 74 N. J. Eq. 197, 71 A. 605, is nearer in point. There it appears that a bill was filed in the Chancery Court of New Jersey by the complainant corporation against the defendant corporation, the latter a resident of Pennsylvania, for the purpose of having declared the ownership of the complainant as against the defendant of certain treasury stock in the complainant company. It appears from the report of the case that some of the certificates were in Pennsylvania, but the complainant company, which had issued the shares, resided in New Jersey. The court held that, the res being thus situated in New Jersey, it had control thereof, and could settle the rights of the respective parties in respect thereto, although the defendant was a nonresident, and had notice only by publication and other substitutionary process directed by the court. It was held that the court, having control of the complainant whose treasury stock was in controversy, had control of the stock or res, since it could order the same into actual custody at any time. The court said:
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