Planters' Chemical & Oil Co. v. A. Waller & Co.

• Decision Date: 04 February 1909
• Parties: PLANTERS' CHEMICAL & OIL CO. v. A. WALLER & CO. ET AL.
• Court: Alabama Supreme Court

49 So. 89

160 Ala. 217

PLANTERS' CHEMICAL & OIL CO. v. A. WALLER & CO. ET AL.

Supreme Court of Alabama

February 4, 1909

Rehearing Denied April 6, 1909.

Appeal from City Court of Talladega; G. K. Miller, Judge.

Action by the Planters' Chemical & Oil Company against A. Waller & Co. and others. Judgment of dismissal, and plaintiff appeals. Reversed and remanded.

Cecil Browne, for appellant.

Whitson & Harrison, for appellees.

DENSON J.

Planters' Chemical & Oil Company, an Alabama corporation, with its home office at Talladega, Ala., commenced its action by attachment in the city court of Talladega, against A. Waller & Co., a Kentucky corporation, with its home office at Henderson, Ky for the purpose of collecting a debt claimed to be due it by the defendant. The attachment was executed by summoning J. F Hanks Company, an Alabama corporation, with home office at Talladega, Ala., to answer as garnishee. Code 1896, § 540. The garnishee answered indebtedness, in the sum of $454.54 on a contract made by it with the defendant in the city of Talladega, Ala. It appeared that proper publication of the attachment and levy thereof by garnishment was made as to the defendant (Code 1896, § 531). Motions were made by both the defendant and garnishee, in the city court, to dissolve the garnishment and discharge the garnishee; the defendant limiting its appearance especially for this purpose. The motions were predicated upon the ground that the defendant was a nonresident and no personal service was had upon it. Upon the hearing, the court granted the motions, and declined to enter judgment by default for the plaintiff, and, upon the plaintiff's declining to proceed further, dismissed the suit. Wherefore this appeal.

It is provided by our statute that suit can be commenced against a nonresident by attachment (Code 1896, § 525); and in respect to the execution or levy of attachments section 540 of the Code of 1896 (section 2940, Code of 1907) provides that they "may be levied on real estate, or on personal property of the defendant, or may be executed by summoning any person indebted to the defendant, or liable to him on a contract for the delivery of personal property, or on a contract payable in personal property, or a person having in his possession or under his control any money or effects belonging to the defendant. See, also, section 2175 of the Code of 1896. It cannot be questioned that the demand or debt disclosed by the garnishee's answer falls within the provisions of the statute above cited and set out. Indeed, it is a demand upon which the defendant might maintain debt or indebitatus assumpsit, and therefore ordinarily is such an one as may be reached by garnishment. Archer v. People's Bank, 88 Ala. 249, 7 So. 53.

From the insistence here made by the appellee's counsel, it seems that the city court, in dismissing the garnishment proceeded upon the theory that the situs of the debt, confessed by the answer as being due by the garnishee, was at the domicile of the defendant, and that the jurisdiction of the court to subject the debt due, by process of garnishment, should be measured by that fact, and therefore the court, in the case at bar, was without jurisdiction in the premises, notwithstanding the garnishee is a resident corporation and made the contract, by which the debt accrued to the defendant, in the city of Talladega, Ala. The exigencies of this case, we think, do not require, nor are we disposed to enter into, an extended discussion of this theory. The following cases decided by the Supreme Court of the United States may be profitably consulted by those desirous of pursuing the question: Harris v. Balk, 198 U.S. 215, 25 S.Ct. 652, 49 L.Ed. 1023; L. & N. R. R. Co. v. Deer, 200 U.S. 176, 26 S.Ct. 207, 50 L.Ed. 426; Chicago, R.I. & P. Co. v. Sturm, 174 U.S. 710, 17 S.Ct. 797, 43 L.Ed. 1144.

Assuming that, generally speaking, the situs of a debt is constructively with the creditor to whom it belongs, "yet it is within the competency of the sovereign of the debtor, by reason of its control over its own resident citizens, to pass laws subjecting the debt to seizure within its territorial sovereignty." This, as we have seen from the statute above quoted, Alabama has done. Reimers v. Seatco Mfg. Co., 70 F. 573, 17 C. C. A. 228, 30 L. R. A. 364, 37 U.S. App. 426; Bragg v. Gaynor, 85 Wis. 468, 55 N.W. 919, 21 L. R. A. 161; Newland v. Circuit Judge, 85 Mich. 151, 48 N.W. 544. In the case of Harris v. Balk, supra, the Supreme Court of the United States said: "If there be a law of the state providing for the attachment of the debt, then, if the garnishee be found in that state and process be personally served on him therein, we think the court thereby acquires jurisdiction over him, and can garnish the debt due from him to the debtor of the plaintiff, and condemn it, provided the garnishee could himself be sued by his creditor in that state. We do not see how the question of jurisdiction vel non can properly be made to depend upon the so-called original situs of the debt, or upon the character of the stay of the garnishee, whether temporary or permanent, in the state where the attachment is issued. Power over the person of the garnishee confers jurisdiction on the courts of the state where the writ issued. Chicago, etc., Co. v. Strum, supra." It is true that that case was one between individuals, but it will be borne in mind that the garnishee in the case in judgment is a resident corporation. Our statutes make ample provision for service of process on such corporation; and so the case in hand cannot, merely because the garnishee is a corporation, be made an exception to the principle laid down in the Harris-Balk Case.

But appellee's counsel insist that this court is fully committed to the doctrine that a state court cannot, in attachment proceedings, condemn a debt due by an Alabama corporation or a resident individual to a nonresident. Among the cases cited by counsel in support of the insistence are L. & N. R. R. Co. v. Dooley, 78 Ala. 524, A. G. S R. R. Co. v. Chumley, 92 Ala. 317, 9 So. 238, L. & N. R. R. Co. v. Steiner & Lobman, 128 Ala. 353, 30 So. 741, and L. & N. R. R. Co. v. Nash, 118 Ala. 477, 23 So. 825, 41 L. R. A. 331, 72 Am. St. Rep. 181. In each of these cases the proposition involved was the service of an attachment upon a garnishee which was a nonresident of the state in which the suit was instituted. While it is true, in Dooley's Case, that the garnishee was doing business in the state where the attachment was issued, yet upon this point in that case this court said: "Our statute had made no provision for the service of process on a foreign corporation to reach a debt such as this was and is"--the only mode of service provided being in respect to "causes of action originating in this state, or on contracts entered into with reference to a subject-matter within this state." The Chumley Case was one where the plaintiff was a resident of Alabama, and the defendant an Alabama corporation; and the debt due had been garnished in a Tennessee court and there subjected to payment of a debt due by Chumley to one of his creditors. It was shown that the debt between the plaintiff and the defendant was contracted and payable in Alabama. The court held that the Tennessee judgment was not binding here. In the Nash Case, the plaintiff was a resident of Alabama, and the defendant, a Kentucky corporation, was indebted to plaintiff for work and labor done in Alabama. The defendant set up, in bar of plaintiff's cause of action, a judgment against it in a garnishment proceeding, at the suit of...