Southern Flour & Grain Co. v. Northern Pac. Ry. Co.
| Decision Date | 01 March 1907 |
| Parties | SOUTHERN FLOUR & GRAIN CO. v. NORTHERN PAC. RY. CO. et al. |
| Court | Georgia Supreme Court |
Syllabus by the Court.
Where a railroad company of this state receives from a railroad company in another state a car, under a contract by which the domestic company has the right to carry the car loaded to its destination in this state and unload it, and then to reload and return it to the owner beyond the limits of this state paying for the use of the car, the right of the domestic company to the use of the car is superior to the right of an attaching creditor, who, without any other lien, seeks to subject the car to attachment by service of the summons of garnishment upon the domestic company; and, in the absence of appropriate equitable pleadings in a court with jurisdiction to render affirmative equitable relief, such car is not subject to the process of garnishment.
Where a railroad company of this state receives from a connecting railroad company of another state a railroad car loaded with freight consigned from a point in another state to a point in this state, under a prevailing custom among railroads and under a contract between the two roads at interest that instead of unloading and reloading at the point of intersection outside of this state, the domestic company upon payment for the use, should have the right to bring the foreign car loaded into this state and to the point of destination, there to be unloaded and afterwards reloaded with freight, and then returned, in the direction from which it came, to a point beyond the limits of this state, such car, while in this state, is not exempt from attachment sought to be executed by service of summons of garnishment for the collection of a debt alleged to be due by the owner upon the ground that the impounding of the car is such an interference with interstate commerce as to be violative of article 1, § 8, par. 3, of the Constitution of the United States, and section 5258 of the Revised Statutes of the United States [U. S. Comp. St. 1901, p. 3564].
Error from City Court of Atlanta; H. M. Reid, Judge.
Action by the Southern Flour & Grain Company against the Northern Pacific Railway Company and others. From a judgment in favor of defendants, plaintiff brings error. Affirmed.
Walter McElreath and W. H. Terrell, for plaintiff in error.
Payne & Tye and Tye & Bryan, for defendants in error.
1. The only contention made before us by counsel for plaintiff in error is that a certain railroad car, the property of the Northern Pacific Railway Company, the defendant in attachment, which came into the hands of the garnishee, the Western & Atlantic Railroad Company, within the jurisdiction of the court, after the execution of the attachment by service of the summons of garnishment and before the garnishee filed its answer to the summons of garnishment, is subject to the attachment. The garnishee insisted that the car was not subject to attachment, and set forth in its answer to the summons the facts upon which it contended that the property was not subject. There being no traverse to the answer of the garnishee, the court, upon motion and consideration, discharged the garnishee and dismissed the attachment. The plaintiff in error was the plaintiff in the court below, and excepted to the ruling of the court. The answer of the garnishee in effect sets up two theories under which it was insisted that the court should not require the garnishee to surrender the possession of the car, to wit: (a) That the garnishee had a right to the use of the car superior to the right of the garnishing creditor; (b) that, the car being employed in interstate commerce, it would be a violation of the federal Constitution and statute upon the subject of interference with interstate commerce to require the surrender of the car. If the judgment was right upon either theory, it would be our duty to affirm it. As we shall affirm the judgment upon the first theory only, it is necessary that we should deal with that view of the case. In the brief for plaintiff in error no point is insisted upon, except that the property was not relieved from the process of garnishment by force of the federal Constitution and statute on the subject of interference with its interstate commerce. Inasmuch as this theory of the case has been dealt with by counsel on both sides, and a ruling thereon is desired, we will also deal with the last theory mentioned; but we will not consider any other proposition which the case may present, for the maintenance of which counsel in their briefs did not insist or contend.
We proceed now to deal with the case under the first theory. We may regard it as fundamental that the owner of property may, as against his creditors, sell, lease, or otherwise dispose of the same, in whole or in part, so long as the transaction is in good faith and founded upon a valuable consideration. A purchaser or other person acquiring any interest in the property takes the same, under circumstances above referred to, freed from the claim of creditors who have no lien at the time that the owner makes the disposition of his property to him. A creditor who acquires a lien after such disposition by the debtor can, as a general rule, seize, under the process issued in enforcement of his lien, only such interest in the property as remains in his debtor, and cannot defeat or in any way interfere with the purchaser in the rights that he has acquired prior to the acquisition of the lien. In the present case the answer of the garnishee alleged that, "by virtue of an understanding existing and an agreement" between the garnishee and the defendant in attachment, a car of the defendant in attachment coming from a point without the state into the possession of the garnishee loaded, upon being unloaded in this state, might be reloaded by the garnishee and used for the purpose of shipment, provided it was routed in such a way that the direction would carry it to the point whence it started; that is, the agreement alleged was, in effect, that the cars of the defendant in attachment should be used to haul freight to points along the line of the garnishee, and, when such cars were emptied, that the garnishee might use them for transporting its freight, provided that they should be loaded only with freight that had a destination in the direction from which the car originally came, when received in their possession and returned to the owner at some point on its line of road out of the state. It was alleged that agreements of this kind were at the present day necessary and almost universal for the purpose of facilitating through shipments and preventing the necessity of unloading and reloading cars at connecting points; that, without such right so to receive and return cars, its business as a common carrier would be seriously affected. The answer does not allege that this agreement was in writing; but the substance of it was set forth therein, and is in effect as above stated. There was no traverse to the answer. Neither was there any exception in the nature of a special demurrer to any of the averments, or other motion made challenging the sufficiency of the answer. In the absence of such exceptions, the answer will be deemed as admittedly true, and as alleging a valid and binding agreement between the two companies of the character above indicated.
Under its agreement, the garnishee acquired a right to use each car of the defendant in attachment as it came into its possession under the circumstances referred to. This was not a mere naked right under the answer, but was based upon a consideration; for, under the arrangement between the companies, each one was to pay the other for the use which it made of the other's cars. We see no reason why such an agreement is not valid, and, if it is valid, under its terms the company receiving the car loaded acquires a special property therein; that is, present possession, with the right to use the car in the transaction of its business for certain purposes and during a limited time. This agreement antedates the service of the summons of garnishment, and, consequently the lien of the attachment. It is a valuable right. The junior attaching creditor cannot, by mere levy, acquire any lien which would defeat the right of use which the garnishee had in the car. If the owner of a horse makes an agreement with another by which the other is to have the use of him for a year, a creditor of the owner cannot...
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