Taylor v. Aldridge
| Decision Date | 24 January 1938 |
| Docket Number | 33002 |
| Citation | 180 Miss. 635,178 So. 331 |
| Court | Mississippi Supreme Court |
| Parties | TAYLOR v. ALDRIDGE |
1 NAMES.
Generally a private person may use any unappropriated trade-name which he may select under which to conduct his business.
2 CORPORATIONS.
Where private person conducts business under corporate name appropriate to a foreign corporation, and represents to persons with whom he deals that the name is that of a real foreign corporation, and attachment is taken against the ostensible corporation as a nonresident, such person is estopped from denying corporate entity, especially where asserted cause of action arises out of a transaction had in regular course of dealing with ostensible corporation.
3 CORPORATIONS.
A corporation cannot be created as against the state by mere agreement, admission, assent, or other acts of private persons.
4. CORPORATIONS.
Private persons may estop themselves, as between themselves, by agreements, admissions, representations, or conduct from denying existence of corporation, so that for purpose of their private litigation their business claiming to be a foreign corporation may become a corporation to all intents and purposes.
5. CORPORATIONS.
Where Mississippi resident did business under name of "Tennessee Brokerage Company, Inc.," and her salesman represented that the business was conducted by a Tennessee corporation with branch office in Mississippi, attachment was properly taken as against a foreign corporation, and was valid against funds to its credit in Mississippi bank.
6. JUSTICE OF THE PEACE.
Where Mississippi resident did business ostensibly as a Tennessee corporation, and attachment was brought as against Tennessee corporation, resident must intervene and defend as the actual original party defendant, rather than as a third party claimant, and circuit court properly dismissed her appeal from justice court decision, brought on theory that Tennessee corporation did not exist (Code 1930, section 153).
APPEAL from the circuit court of Sunflower county HON. S. F. DAVIS, Judge.
Attachment suit in justice of the peace court by C. H. Aldridge against the Tennessee Brokerage Company, Inc., as a nonresident corporation, wherein the Bank of Ruleville was garnished and Mrs. Hal Taylor filed claimant's affidavit. The justice court rendered judgment for plaintiff and disallowed claimant's claim, and claimant appealed to the circuit court. From a judgment of the circuit court dismissing the appeal on motion, claimant appeals. Affirmed.
Affirmed.
John W. Crisler, of Clarksdale, for appellant.
In Mississippi there is no such thing as a special appearance. When a party comes into court he is there for all purposes. It is immaterial whether he designates himself defendant, claimant, petitioner, movant, or intervener, he is there fully and completely, and he cannot by a designation either broaden his rights or limit his liability. When he enters the lists the gates of the arena are closed against retreat and he is there until the contest is ended. In the courts of Mississippi the designation is nothing, the appearance everything.
McCoy v. Watson, 154 Miss. 307, 122 So. 368; Afro-American Sons & Daughters v. Webster, 172 Miss. 602, 161 So. 318; J. A. Maloney & Co. v. Tatum, 134 Miss. 714, 99 So. 129.
As an example of the extent to which the Mississippi courts have gone in disregarding the designation of the parties or the capacity in which they appear, we refer to Jones v. Railroad Company, 75 Miss. 913.
Jurisdiction in an attachment suit can be sustained on only two grounds: first, that the defendant is a resident of the county where the suit is brought; and second, that assets of the defendant were levied on in that county. If neither of these grounds exists the court is without jurisdiction.
Section 127, Code of 1930; Baum & Co. v. Brains, 66 Miss. 124, 5 So. 697; Campbell v. Triplett, 74 Miss. 365, 20 So. 844.
In the case at bar it is undisputed that the appellant was a resident of Panola County. Should we then show to the court that the writ of attachment was void there would be no lawful levy, and the Sunflower County court was without jurisdiction. In such a situation the motion to quash must be sustained.
Where suit is brought against a non-existent defendant, the whole proceeding is void ab initio and its invalidity may be called to the attention of the court at any stage of the proceeding.
47 C. J., 193 (368) and 66 (138).
The remedy by attachment is available only against the property of persons natural or artificial, and, as a general rule, the party against whom an attachment is available must stand in the relation of debtor to the plaintiff in the action.
6 C. J. 40 (22); Metropolitan Street Ry. v. Adams Exp. Co., 145 Mo.App. 371, 130 S.W. 101; Life Ins. Co. of Virginia v. Page, 172 So. 873.
It seems to us that the Supreme Court of Mississippi has directly and unequivocally settled this question in the case of Purnell v. Frank, 68 Miss. 639, in which it was held that a writ of attachment for rent against a deceased person was plainly void.
It seems to us, from a consideration of these authorities, that the conclusion is inescapable that the writ of attachment in the case at bar was void. If the writ of attachment was void then necessarily there was no lawful levy. If there was no lawful levy the courts in Sunflower County had no jurisdiction, for neither ground of jurisdiction essential in an attachment suit existed.
Irrespective of appellant's residence these proceedings could not bring her into court on debt issue.
Ordinarily a defendant in an attachment is required to answer on the debt issue after the quashing of the attachment; but this is true only where the proceedings are valid. If the proceedings are void, the defendant is not in court on the debt issue. In this case the defendant, appellant here, could not have been required to answer on the debt issue even if she had been a resident of Sunflower County. The entire proceeding was void.
Sawyers v. Smith, 41 Miss. 554; Wood v. Baily, 77 Miss. 815, 27 So. 1001.
James O. Eastland, of Ruleville, for appellee.
Section 151 of the Code of 1930 is as follows:
Section 3424, Code of 1930, provides as follows: "When any person not a party to the execution shall claim to be owner of or to have a lien upon any personal property levied upon, etc."
It is seen from Section 151 of the Code of 1930 that in attachment suits when a third person claims the property attached the law with reference to trial of right of property fully applies, and further, that the trial of the right of property shall not be had until after judgment in favor of the plaintiff in the attachment suit.
Appellant's testimony shows that Mrs. Taylor was and is the Tennessee Brokerage Company, Inc. She was therefore a party to the attachment suit. She was the defendant in that suit, and being the defendant and being a party to the suit, under Sections 3424 of the Code of 1930 she cannot appear as a third party claimant because she was the principal defendant.
In this case the judgment against Tennessee Brokerage Company, Inc., was not appealed from. The Circuit Court, therefore, did not err in sustaining appellee's motions and dismissing the appeal because all the proof showed without conflict that Mrs. Taylor, appellant, was an original party to the suit, and being an original defendant and having a judgment against her as an original party to the suit, she cannot then appear as a third party claimant and try the right of property.
Appellant is estopped to deny that she is a corporation and in truth and fact she is a de facto corporation.
Casey v. Galli, 94 U.S. 673, 24 L.Ed. 168; 14 C. J., page 235, sec. 254, page 245, sec. 271, and page 226, sec. 234.
The attachment was not void and appellant's motion to quash the attachment was properly overruled. Appellant was sued under the name and in the capacity that she represented herself to be. The law permits no one to take conflicting positions. She represented herself to the public to be a corporation, she represented herself to appellee as a corporation, she is for the purpose of this litigation a corporation de facto. By her acts and conduct she is estopped from saying Tennessee Brokerage Company, Inc., is not a corporation. She is most certainly estopped from saying that Tennessee Brokerage Company,...
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...69, 283 S.W.2d 33 (1955); 8 Fletcher § 3938. 11. See cases cited in Frey, footnote 6 above at p. 1158, note 22. 12. Taylor v. Aldridge, 180 Miss. 635, 178 So. 331 (1938); 8 Fletcher §§ 13. The point is best illustrated by Western Machine Works v. Edwards Machine & Tool Corp., 223 Ind. 655, ......