Weyand v. Atchison, T. & S. F. Ry. Co.

• Decision Date: 22 October 1888
• Citation: 39 N.W. 899,75 Iowa 573
• Court: Iowa Supreme Court
• Parties: WEYAND v. ATCHISON, T. & S. F. RY. CO.

75 Iowa 573

39 N.W. 899

WEYAND

v.ATCHISON, T. & S. F. RY. CO.

Supreme Court of Iowa.

October 22, 1888.

On rehearing. For former opinion, see 33 N. W. Rep. 133.

This is an action aided by attachment brought to recover the value of a quantity of canned goods, shipped by the Elgin Iowa Canning Company, to Pueblo, Colo., and alleged to have been delivered to a person not entitled to receive the same, through the fault of defendant. The cause was tried to the court, and a judgment rendered in favor of plaintiff for the amount admitted to be the value of the goods in controversy and sustaining the attachment. Defendant appeals. On the first submission of this cause a decision was rendered by this court reversing the judgment of the superior court. A rehearing was ordered on the petition of appellee, and the cause again submitted.George R. Peck and Anderson, Davis & Hagerman, for appellant.

Henry Rickel, for appellee.

ROBINSON, J., ( after stating the facts as above.)

Plaintiff is the trustee of the Elgin Iowa Canning Company. Defendant is a corporation organized and existing under the laws of the state of Kansas, and engaged in operating a line of railway from Kansas City through the states of Kansas and Colorado, and to the city of Pueblo, in the last-named state. At the time this cause was tried in the court below defendant had never owned nor operated any railway within the state of Iowa. In October, 1884, one Evans, of Pueblo, ordered of the canning company the goods in controversy. Not being acquainted with Evans and not wishing to sell the goods on credit, it delivered them, marked and consigned to itself at Pueblo, to a railway company at Elgin, Iowa. From that company the canning company took two receipts or bills of lading which were in fact duplicates, but neither showed that another had been issued. The canning company drew a draft on Evans, through a bank in Pueblo, for the price of the goods, and sent to the bank an order on defendant to deliver the goods to Evans. The draft and order were sent together to the bank with instructions to deliver the order to Evans upon payment by him of the draft. At the same time the canning company sent to Evans one of the bills of lading, instructing him that the goods had been shipped, and that he was to pay the draft and obtain the order. The bill of lading sent to Evans was not signed nor indorsed by the canning company. In due time the goods were transferred by the railway company which first received them to defendant, and were by it transferred to Pueblo. Evans never paid the draft nor obtained the order, but within 24 hours after the arrival of the goods in Pueblo he presented the bill of lading which he had received to defendant, and without other authority obtained the goods. At that time Evans was insolvent, but defendant had no knowledge of that fact, nor that the goods had not been paid for, nor that a draft and order had been sent or instructions given in regard to the goods, but delivered them in good faith. The canning company commenced an action to recover of defendant the value of the goods in question, which was transferred to the circuit court of the United States for the Northern district of Iowa. The answer in that case alleged that defendant was a corporation organized and existing under the laws of Kansas for the purpose of operating a line of railway, but was not organized for the purpose of nor engaged in operating a railway within this state; that no part of the road of defendant was or had ever been operated in this state, and that the claim of plaintiff did not grow out of and was not in any manner connected with any office or agency of defendant in this state. A demurrer to that answer was overruled, and in consequence the canning company dismissed its action. It after wards appointed plaintiff, who is a citizen of Kansas, its trustee to collect the claim in suit. This action was commenced, and the Burlington, Cedar Rapids & Northern Railway Company, a corporation doing business and with its principal office in Linn county, was garnished by virtue of the attachment process. The answer of the garnishee showed that it had in its possession when garnished the sum of $1,500 which belonged to defendant.

1. Appellant insists that the superior court had no jurisdiction in this cause for reasons set out in its answer in the action which was transferred to the federal court, and that the question of jurisdiction of the claim in suit was finally adjudicated in that action. The opinion of the federal court is found in 24 Fed. Rep. 866. We do not regard the decision of that court as conclusive of the right of plaintiff to maintain this action, even though it be concededto have the force and effect of a final adjudication. It was based upon the facts as they existed in that case. It did not pass upon the right of the canning company to recover of defendant excepting in that action, “under the facts disclosed in the record” therein. One vital fact was that no attachment of property of defendant was disclosed. The defendant at the time this action was commenced had never owned nor operated a line of railway in this state, nor had it ever had therein any office or agency out of which plaintiff's cause of action grew. Therefore, neither of sections 2582 and 2585 has any application to the case. The defendant was not found within this state and had no residence therein; hence section 2586 of the Code does not apply. Section 2580 provides as follows: “An action, when aided by attachment, may be brought in any county of the state wherever any part of the property sought to be attached may be found when the defendant, whose property is thus pursued, is a non-resident of this state.” The legal home of defendant is in the state of Kansas. Ex parte Schollenberger, 96 U. S. 369. It is a non-resident of this state, and having property in Linn county, when this action was commenced, falls within the provision quoted. The federal court decided that jurisdiction of the defendant had not been acquired, and therefore that judgment could not be rendered against it. This action is in the nature of a proceeding to subject certain property found within the jurisdiction of the superior court to the payment of plaintiff's claim. The first was a personal action, and jurisdiction of defendant was necessary to its presentation. This is in the nature of an action in rem, and the court having jurisdiction of the property sought to be appropriated could acquire such jurisdiction of the defendant as was necessary for the purposes of the action by the personal service of the original notice or by its publication. It will hardly be claimed if defendant engaged in operating a line of railway within this state after the action in the federal court had been dismissed that the decision in that action would bar a second suit. In our opinion there is no more reason for holding it to be a bar in this action than there would have been in the case supposed. The case of Ex parte Railway Co., 103 U. S. 794, is not in conflict with the views we have expressed. Section 739 of the Revised Statutes of the United States prohibits the bringing of a civil suit other than a suit in equity to enforce a lien against an inhabitant of the United States by original process in any other district than that of which he is an inhabitant or in which he is found at the time of serving the writ. Section 2, c. 120, 21 U. S. St. at Large, p. 155, requires civil suits not of a local nature to be brought in the division of the district of Iowa where the defendant resides, and the case last cited was based upon those statutes. But sections 2582 and 2585 of the Code are not restrictive, but were designed to give to plaintiffs additional facilities for bringing actions against the parties therein named. There is no ground for believing that the general assembly designed to exempt the property of non-resident corporations from judicial process in any case where the property of other non-resident debtors could be taken.

2. Appellant insists that it was not in fault in delivering the goods to Evans for the reason that the delivery to him of the bill of lading was in effect an assignment of the goods and invested him with a right to demand and receive them. We are...