32 S.E. 799 | N.C. | 1899
This is a petition to rehear the decision reported in
The apparent inconsistency or hardship of such ruling is much (469) lessened by the uniform holding by courts of that line of thought that the attachment of the debt can only be made where the debtor resides, and can have no validity if levied upon him when only passing through or transiently in another State. It is thus stated in 8 A. E., 1129, 1130: "Choses in action upon which the garnishee is liable are not to be considered as following the former wherever he may be transiently found, to be there taken, at the will of a third person, within a jurisdiction where neither such debtor nor his creditor resides. As a general rule, therefore, the courts of a State cannot, by their service of process upon an inhabitant of another State transiently within their jurisdiction, charge such person as garnishee. But if when so served the garnishee have in his possession, within the State, money or property of the defendant, or has contracted to pay money or deliver property within such jurisdiction, he may be charged." This is sustained by uniform decisions (many of which are there stated in the notes), among many others,Smith v. Eaton,
Inasmuch as an attachment is in effect a proceeding by the (471) principal debtor (the defendant in the action) in the name of the plaintiff against the garnishee, it is thus properly held even in those courts which hold that the situs of a debt for this purpose is with the debtor (garnishee) that the action must be brought where he "resides" or "has his domicile," since it is there that this creditor must have sued him. One or two cases unguardedly say the action may be brought "wherever the debtor (garnishee) may be found" but the context and the facts in those cases show that they mean where he may be found "resident" or "domiciled" as it is expressly held in all cases where the point is made. As upon the uniform authorities above cited and others not necessary to cite, the Maryland Court acquired no jurisdiction as against Balk by service of notice upon his debtor Harris, who had no tangible property of Balk's in his possession, and was not resident in that State, we reaffirm our former decision, but after the benefit of the able and exhaustive argument upon the rehearing, for an entirely different reason from that given on the first hearing.
PETITION DISMISSED.
Cited: Strause v. Ins. Co., 126 N.C. N.C. 229; Balk v. Harris,
Reversed on Writ of Error,
(472)