Southern Pacific Railroad Co. v. Lyon

• Decision Date: 03 April 1911
• Docket Number: 15,096
• Citation: 54 So. 728,99 Miss. 186
• Court: Mississippi Supreme Court
• Parties: SOUTHERN PACIFIC RAILROAD COMPANY v. A. J. LYON

54 So. 728

99 Miss. 186

SOUTHERN PACIFIC RAILROAD COMPANY v. A. J. LYON

No. 15,096

Supreme Court of Mississippi

April 3, 1911

APPEAL from the chancery court of Lauderdale county, HON. SAMUEL WHITMAN, JR., Chancellor.

Bill by A. J. Lyon & Company against the Southern Pacific Railroad Company. Demurrer to bill overruled and defendant appeals.

Decree affirmed and cause remanded.

Bourdeaux & Venable, for appellant.

The first ground or proposition which we wish to discuss is that challenging the jurisdiction of the court on the ground that the situs of the debt attached in the hands of the New Orleans & Northeastern Railroad Company, or rather sought to be attached, is in Louisiana, or some other state and without the jurisdiction of this court.

The correct solution of this question of jurisdiction depends upon the answers which are given to two questions.

1st. Where is the situs of the debt sought to be bound in the hands of the New Orleans & Northeastern Railroad Company? Of course, if the situs of the debt, sought to be bound in the hands of this resident defendant, is not within the jurisdiction of Mississippi, it cannot be reached by process issuing out of any court of the state and nothing has been attached in this case as provided for by the statute under which the action was brought. This must follow since the action brought by Lyons is a proceeding against specific property, debt or funds, for the purpose of fixing a lien upon it or taking it into legal custody for the purpose of subjecting it to the satisfaction of any judgment which may be finally rendered in the cause. Railroad Co. v Smith, 70 Miss. 344.

We state our contention, briefly, by saying that for purposes of attachment or garnishment the situs of a debt is at the domicile of the creditor (The Southern Pacific Railroad Company). Railroad Co. v. Smith, 70 Miss. 344; Bucy v. Railroad Co. (Miss.), 22 So. 295; Railroad Co. v Nash (Ala.), 23 So. 825; Railroad Co. v. Chumley, 9 So. 286; Lovejoy v. Albee, 54 Am. Dec. 630; Smith v. Eaton, 58 Am. Dec. 746; Central Trust Co. v. Railroad Co., 68 F. 685; Mason v. Beebee, 44 F. 556.

We now proceed to the discussion of our second question first above asked.

The situs of the debt being in a foreign jurisdiction and for that reason the proceeding, as a proceeding in rem having failed, can the court, under the authority of the statute under which this cause was brought, retain jurisdiction, for the purpose of trying the cause on the merits and rendering a personal decree, the defendant having been personally served with summons or having entered appearance, or, on the other hand, is the existence of the grounds for attachment the sine qua non of jurisdiction for any purpose?

We submit that it cannot; that the existence of the grounds for the attachment is the sine qua non of jurisdiction for any purpose and they having been determined not to exist the suit must be dismissed for any and all purposes. Chamberlain Academy v. Port Gibson, 80 Miss. 517.

The question is one of jurisdiction. The statutes giving the right to, both in law and chancery, are in derogation of the common law, which knew no such proceedings and are to be strictly construed. The courts having no authority to entertain suits of this character except upon grounds and in the cases specified according to a strict construction of the statutes which confer the right and authority. Rankin. v Dulaney, 43 Miss. 197.

We submit that the jurisdiction of the chancery court exists only by virtue of the statute and is no greater than that specifically conferred in terms. The statute says (Code 1906 § 536): "The chancery court shall have jurisdiction of attachment suits, etc., against any nonresident, absent or absconding debtor, who has lands or tenement in this state or where there are persons, who have in their hands effects of, or are indebted to, such non-resident, absent or absconding debtor. The court shall give a decree in personam, against such non-resident, absent or absconding debtor, if summons has been personally served upon him or if he has entered an appearance."

By the very language of the statute, jurisdiction is conferred in two and only two cases: (1) The debtor must have lands or tenements in this state, or (2) there must be a resident or "persons in this state" who have goods, effects or debts belonging to the non-resident debtor and in addition to this, the debtor must be nonresident, absent or absconding. In the absence of these grounds, the chancery court had no jurisdiction to attach, unless given by the last sentence, which cannot be the case since that only has reference to the action of the court after the debtor has been brought in personally. Lumber Co. v. Bank, 86 Miss. 419.

McBeath & Miller, for appellee.

This was an attachment in the chancery court filed under sections 536 and 537, Code 1906, which sections are as follows:

"Attachment against non-residents: The chancery court shall have jurisdiction of attachment suits based upon demands founded upon any indebtedness, whether the same be legal or equitable, or for the recovery of damages for the breach of any contract, express or implied, or arising ex delicto against any non-resident, absent or absconding debtor, who has lands or tenements within this state, or against any such debtor and persons in this state who have in their hands effects of, or are indebted to, such non-resident, absent or absconding debtor. The court shall give a decree in personam against such non-resident, absent or absconding debtor if summons has been personally served upon him, or if he has entered an appearance.

"The same: How effects or indebtedness bound: When a bill shall be filed for an attachment of the effects of a non-resident, absent or absconding debtor in the hands of persons in this state, or of the indebtedness of the defendant in this state to such non-resident, absent or absconding debtor, it shall be sufficient, to bind such effects or indebtedness, that the summons for the defendant resident in this state shall have stated in or endorsed upon it the nature and object of the suit, and that it is to subject the effects in the hands of the resident defendant, and the indebtedness of such defendant, to the nonresident, absent or absconding debtor, to the demand of the complainant; or, instead of such statement on the summons, a copy of the bill may be served with the summons, and shall bind the effects or indebtedness from the time of such service."

The situs of the debt in this case has nothing to do with the matter. But for a few moments, we will briefly discuss that feature of the case. Since the decision of our court in the cases cited by counsel for appellant, the United States Supreme Court, the highest tribunal in our land, has recently decided the exact case in point, and adversely to the contention of counsel for appellant. Sturn v. Chicago & Rock Island Railroad Co., 174 U.S. 710; L. & N. R. R. Co. v. Deer, 200 U.S. 176; Harris v. Balk, 198 U.S. 215.

We believe that this court, after a careful perusal of the three United States Supreme Court cases heretofore cited, will reverse the old Mississippi doctrine and will accord to its own citizens the same right in the collection of their debts as given to their creditors in collecting from them.

OPINION

WHITFIELD, C.

This is an attachment suit in the chancery court, brought under the authority of section 536 of the Mississippi Code of 1906. A J. Lyon & Co., complainant in the court below and appellee here, sued out an attachment in the chancery court of Lauderdale county, Mississippi, against the Southern Pacific Company and New Orleans & Northeastern Railroad Company. The Southern Pacific Company is a nonresident of the state of Mississippi, and has no lines or agents in the state of Mississippi. The New Orleans & Northeastern Railroad Company is a Louisiana corporation, with its general offices in New Orleans, Louisiana, but owns and operates a line of railroad in the state of Mississippi. The complainant in its original bill and the several amendments thereto, seeks by virtue of section 536 of the Code of 1906 to subject to the satisfaction of its claim any debt or funds due the Southern Pacific Company. The New Orleans & Northeastern Railroad Company, nominally a codefendant, but in effect a mere trustee or garnishee, filed an answer, in which it set up that it was indebted to the Southern Pacific Company, but that said indebtedness did not arise in the state of Mississippi, that its general offices are in New Orleans, Louisiana, and that said indebtedness was payable by voucher issued from said general offices to said Southern Pacific Company, a nonresident of the state of Mississippi, and set up other facts showing that the situs of the debt was elsewhere than Mississippi. The gravamen of the complainant against the Southern Pacific Company is that it entered into a contract with complainant to safely transport within a reasonable time a car load of goods from Fresno, California, to Meridian, Mississippi, via the Queen & Crescent at New Orleans, but that, notwithstanding its said "contract," the defendant wrongfully delivered the said car to the Illinois Central Railroad at New Orleans, which fact caused the car to be delayed in arriving at Meridian, Mississippi, and because of this delay the complainant suffered damages. The original bill of lading issued by the Southern Pacific Company is filed as exhibit to complainant's bill, and is prayed to be made a part thereof. The Southern Pacific Company interposed a demurrer to complainant's bill and set out as grounds for demurrer, among other things, that the situs of the debt was elsewhere than in Mississippi, thereby depriving the chancery court of...