144 So. 469 | Miss. | 1932
The appellants exhibited an original bill against the appellee, a national bank having its domicile and principal place of business in Birmingham, Alabama, alleging, in substance, that the bank had agreed to sell to the complainants certain described land situated within the territorial jurisdiction of the court; that although the complainants stood ready, and had offered to comply with their part of the contract of sale, the bank refused to sell them the land, but, on the contrary, had sold a part thereof, making it impossible for the contract to be specifically performed, resulting in the appellants being damaged, for which they prayed a recovery, and that that portion of the land still owned by the bank be subjected to the payment of any judgment obtained by the complainants against the bank. The bill prayed for process including "a writ of attachment to be issued and be levied as required by law upon the above described land belonging to and owned by the defendant," and for a judgment for the amount of the complainants' damages for the payment of which that portion of the land agreed by the bank to be sold the complainants, and which it still owned, be subjected. A writ of attachment was issued and levied on the land in accordance with section 175, Code of 1930, and we will assume that the appellee was duly summoned by publication.
The bank appeared and filed a motion (1) to quash the writ of attachment under section 5242 of the Revised Statutes of the United States, being section 91, title 12, U.S.C.A., and (2) to dismiss the bill of complaint. This *13 motion was sustained, the attachment quashed, and the bill dismissed. The federal statute relied on provides, among other things, that "no attachment, injunction or execution, shall be issued against such association (a national bank) or its property before final judgment in any suit, action, or proceeding, in any state, county, or municipal court."
The issuance and service of the writ of attachment is clearly within the prohibition of this statute, National City Bank of St. Louis v. Stupp Bros. Bridge Iron Co.,
It is undoubtedly true that courts of equity have jurisdiction independent of sections 173 et seq., Code of 1930, to subject property owned by a nonresident, situated within its territorial jurisdiction, to the payment of debts due by such nonresidents. Dollman v. Moore,
When an action at law or a suit in equity is within the general jurisdiction of a court, it acquires the right to proceed therewith, after the filing of the declaration or bill of complaint, "in one of two modes; first, as against the person of the defendant, by the service of process; or secondly, by a procedure against the property of the defendant, within the jurisdiction of the court. In the latter case the defendant is not personally bound by the judgment, beyond the property in question. And it is immaterial whether the proceeding against the property be by an attachment or bill in chancery. It must be, substantially, a proceeding in rem." Boswell v. Otis, 9 How. 336, 348, 13 L.Ed. 164; Pennoyer v. Neff,
The proceeding here is not to enforce a right to, interest in, or lien on, property of the type illustrated by Roller v. Holly,
The jurisdiction of the court in such a proceeding to inquire into and determine the defendant's asserted obligation to the complainant, is incidental to, and dependent on, its control over the property. And unless the property is brought within such control, it can be disposed of by its owner before final judgment, and the whole proceeding thereby rendered nugatory. To hold otherwise would not only be contrary to the authorities, but "would introduce a new element of uncertainty in judicial proceedings." Pennoyer v. Neff, supra.
But it is said by counsel for the appellants that in equity no seizure of the property is necessary to bring it within the control of the court; that the mere filing of the bill of complaint, followed by publication of summons for the owner of the property, has that effect, citing Dollman v. Moore, supra, and Gordon v. Warfield,
Under section 173, Code of 1930, an appearance by a nonresident defendant may, under some circumstances, convert the proceeding into one in personam, but there is no contention here that the appellee's appearance was such as to have that effect.
Affirmed.