Estes v. Bank of Walnut Grove

• Citation: 159 So. 104,172 Miss. 499
• Decision Date: 04 February 1935
• Docket Number: 31396
• Court: United States State Supreme Court of Mississippi
• Parties: ESTES v. BANK OF WALNUT GROVE et al

159 So. 104

172 Miss. 499

ESTES v. BANK OF WALNUT GROVE et al

No. 31396

Supreme Court of Mississippi

February 4, 1935

Division A

Suggestion Of Error Overruled, March 18, 1935.

APPEAL from the chancery court of Holmes county HON. M. B MONTGOMERY, Chancellor.

Suit by Frank A. Estes against the Bank of Walnut Grove and others. From a decree of dismissal, plaintiff appeals. Affirmed.

Affirmed.

O. B. Triplett, Jr., of Forest, and Wm. I. McKay of Vicksburg, for appellant.

The precise position of the appellant is, that, for the purpose of his suit, the venue thereof was in Holmes county, that is, that the domicile of the Tchula Cooperative Store, so far as appellant could be affected thereby, was in that county, and that the lower court erred in holding that the domicile had been changed to Washington county with any effect on appellant.

The charter must be strictly construed against appellees.

14a C. J. 260-1; Gaines v. Coates, 51 Miss. 335.

The power claimed is in derogation of common right. The rule of strict construction also applies where a corporation claims under its charter any other power, exemption, or other privilege which is in derogation of common right, and thus infringes upon the rights either of the public or of particular individuals.

14a C. J. 263-4.

The claimed power is controlled by law, not by charter.

Chapter 38, Code of 1880, sections 1028 and 1030; Laws of 1884, page 90.

The corporation cannot change its domicile.

14 C. J. 340; 1 Thompson on Corporations, page 599.

The minutes do not show change of domicile.

The appellees are estopped to deny the charter domicile.

14 C. J., pages 340-1.

Something is said in the motions to quash to the effect that publication of notice to the Hibernia Bank & Trust Company could not be made until service of process on the Tchula Cooperative Store. There is no merit whatever in this ground.

Section 177, Code of 1930.

By filing its general demurrer and obtaining the continuance of the cause the appellee, Bank of Walnut Grove, waived any question of the venue of the suit so far as it was concerned.

67 C. J., pages 92-93, secs. 148-149, and page 131, sec. 214; Gatlett v. Drummond, 113 Miss. 450, 74 So. 323.

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 nonresident . . . debtor, against any such debtor and persons in this state who . . . are indebted to such nonresident . . . debtor.

Section 173, Code of 1930.

Appellant's suit is based upon a demand founded upon an indebtedness against the Hibernia Bank, a nonresident debtor, and the Tchula Cooperative Store is a person in this state who is indebted to the nonresident debtor, the Hibernia Bank.

Smith v. Mulhern, 57 Miss. 591; Baum v. Burns, 66 Miss. 124.

For the purpose of venue the residence or domicile of a corporation is the place designated in its articles of incorporation or charter as the place where the corporation is to be located.

Woods Gold Mining Co. v. Royster, 46 Colo. 191, 103 P. 291; St. Charles Sov., etc., v. Thompson, etc., Armory Co., 210 S.W. 868; State v. District Court, 191 Ia. 244, 182 N.W. 211; Rossie Iron Works v. Westbrooks, 59 Hun. 345, 13 N.Y.S. 141; Western Travelers Acc. Asso. v. Taylor, 62 Nebr. 785, 87 N.W. 950; 126 Misc. 351, 214 N.Y.S. 311; Section 4140, Code of 1930; Bottling Co. v. Watson, 160 Miss. 173, 133 So. 677.

In their brief appellees contend that the publication for the Hibernia Bank could not be made until after the levy of the writ of attachment. This is untenable.

Sections 174 and 177, Code of 1930.

If, at the time of the attachment, any of the indebtedness of the Tchula Cooperative Store owned by the Hibernia Bank had matured, such indebtedness was clearly attachable, however evidenced.

28 C. J. 159; Griffith's Chancery Practice, sections 400, 403 and 407; Sections 173 and 178, Code of 1930; Insurance Co. v. Robertson, 126 Miss. 387; Mobley v. Hibernia Bank, 140 So. 251.

W. T. Weir, of Walnut Grove, for appellee, Bank of Walnut Grove.

If the court did not have jurisdiction to try the case against the Tchula Cooperative Stores then it could not by any stretch of the imagination have jurisdiction over the Bank of Walnut Grove which is admittedly a corpora tion having its domicile in Leake county and has no domicile of any kind or property rights in Holmes county.

Section 363, Code of 1930.

The court in Holmes county had no jurisdiction over the Bank of Walnut Grove.

Griffith's Chancery Practice, section 155.

Green, Green & Jackson, of Jackson, and Dufour, St. Paul, Levy & Miceli, of New Orleans, Louisiana, for appellees.

There was no conformity with precedent statutory requirements.

Section 174, Code of 1930; 6 C. J. 30; Rankin v. Dulaney, 43 Miss. 197; Hasey v. Ferriere, 1 S. & M. 664; Cantrelle v. Letwinger, 44 Miss. 440; Delta, etc., Ins. Co. v. Bank, 102 So. 848, 137 Miss. 855; Scruggs v. Blair, 44 Miss. 406.

To give validity and conclusive effect to a judgment in a proceeding in rem the thing must be subject to the control of the court and within its territorial jurisdiction.

13 Encyc. Pl. & Pr., 186-194; Hine v. New Haven, 40 Conn. 478; Brown v. Board, 50 Miss. 481; Campbell v. Triplett, 74 Miss. 363, 20 So. 844.

There was no property in Holmes county at any time. The sole inter-relation between Hibernia Bank and the store consisted of negotiable notes whose actual situs was with the Louisiana judicial liquidation, or in Washington with the Reconstruction Finance Corporation.

Smith v. Mulhern, 57 Miss. 491; Baum v. Burns, 66 Miss. 124, 5 So. 697; 6 C. J. 956; Werner v. Sheffield, 42 So. 876, 89 Miss. 12, 18; 28 C. J. 192-3; Advance Lbr. Co. v. Bank, 66 Miss. 419, 38 So. 313; Delta, etc., Co. v. Interstate, etc., 74 So. 420, 113 Miss. 542.

The attachment was not levied until June, 1933. The process was returnable to the second Monday in April, a prior date, then past.

The Tchula Cooperative Store is nonresident of Holmes county, domiciled at Leland, Washington county, with no property in Holmes county.

19 C. J. 392; Hairston v. Hairston, 27 Miss. 704; Weaver v. Norwood, 59 Miss. 678; Morgan v. Nunes, 54 Miss. 308; Plummer-Lewis Co. v. Francher, 71 So. 907-8, 111 Miss. 656; Tchula Commercial Co. v. Jackson, 111 So. 874-80, 147 Miss. 296; Fireman's Fund Ins. Co. v. Cole, 152 So. 872; 19 C. J. 397 and 400; 14 C. J. 338.

The charter has fixed the domicile, not at Tchula, but "at Tchula or such other place" as the majority of the stockholders in value may determine.

Werner v. Sheffield, 42 So. 876, 89 Miss. 12, 18; 14 C. J., sec. 417; Inter-Southern Life Ins. Co. v. Milliken, 149 Ky. 516, 149 S.W. 875, L.R.A. 1917A 450.

The charter constitutes a declaration of right to have a domicile by choice, and was ample authority for that thus done.

Bank v. Grigsby, 155 So. 685; Middleton v. Mercantile Co., 117 Miss. 134, 77 So. 956.

No jurisdiction in attachment obtainable. Exclusive possession validly vested in Louisiana liquidation proceedings.

Slattery v. Renoudet Lbr. Co., 125 Miss. 229, 87 So. 888; Windsor v. McVeigh, 93 U.S. 279, 23 L.Ed. 916; S. C. 8, Rose's Notes on U. S. Repts. M. 957; McHenry v. State, 91 Miss. 562, 44 So. 831; Ex parte Burden, 92 Miss. 14, 27, 45 So. 1.

The jurisdiction, in rem, does not attach until the res is in the possession of the court within the county.

Taylor v. Carryl, 20 How. 599, 15 L.Ed. 1034; Pennoyer v. Neff, 95 U.S. 727, 24 L.Ed. 565.

Proceedings in rem are not exempt from the operation of the rule which makes service of notice in some form essential to the exercise of jurisdiction, and seizure without service is a trespass.

The Mary, 9 Cr. 126, 142, 146, opinion of Marshall, C. J.; New Lamp Chimney Co. v. Cooper Co., 91 U.S. 656; Cooley Cons. Lim. (2 Ed.) 498-9; Wells on Juris., sec. 88; Waples Proc. In Rem., secs. 588, 570 et seq.; Woodruff v. Taylor, 20 Vt. 65; Denning v. Corwin, 11 Wend. 647; Freeman v. Thompson, 53 Mo. 196; Fencher v. Keyl, 48 Ohio St. 366; Sentzler v. Thayer, 10 Colo. 64; Door v. Tohr, 82 Vt. 359; In re Empire City Bank, 18 N.Y. 199; Bradstreet v. Insurance Co., 3 Sum. (608, per Mr. Justice Story); Schlitz v. Reonitz, 86 Wis. 40; Hassell v. Wilcox, 130 U.S. 504, 33 L.Ed. 1001; Hammock v. Farmers' Loan & Trust Co., 105 U.S. 77, 26 L.Ed. 1111; Kline v. Burket Constr. Co., 260 U.S. 320, 67 L.Ed. 226, 230; Farmers' Loan & Trust Co. v. Elev. R. Co., 177 U.S. 51, 44 L.Ed. 667; Palmer v. Texas, 212 U.S. 118, 53 L.Ed. 435; Ex parte Baldwin, 78 L.Ed. 677; Theobald v. Deslonde, 46 So. 712, 93 Miss. 208; Murray v. State, 213 U.S. 174, 53 L.Ed. 752; 23 C. J. 1059.

Evidence of indebtedness being negotiable instruments is not subject to attachment.

28 C. J. 154; McKinney v. Kuhn, 39 Miss. 188; Cocke v. Brewer, 58 Miss. 778, 9 So. 823; Klein v. French, 57 Miss. 662; Speed v. Kelly, 59 Miss. 47.

Reconstruction Finance Corporation, pledgee of said negotiable instrument, nonresident of Mississippi, an indispensable party, prevented attachment jurisdiction attaching.

Delta etc., Co. v. Bank, 102 So. 846, 137 Miss. 856; Cocke v. Brewer, 68 Miss. 778, 9 So. 823; Delta, etc., Co. v. Interstate Fire Ins. Co., 113 Miss. 542, 74 So. 420; Lumber Co. v. Laurel National Bank, 86 Miss. 419, 38 So. 313; Sawmill Co. v. Sheffield, 89 Miss. 12, 42 So. 876; Federal Reserve Bank v. Malloy, 264 U.S. 160, 68 L.Ed. 617, 31 A.L.R. 1261; 10 C. J. 133, 191; 4 R. C. L., sec. 230, page 764; 2 C. J., sec. 274, page 633; Pearl River County v. Merchants Bank & Trust Co., 151 So. 756; Peoples Gin Co. v. Canal Bank & Trust Co., 144 So....