Delta Ins. & Realty Co. v. Interstate Fire Ins.

74 So. 420 | Miss. | 1917

Holden, J.,

delivered the opinion of the court.

The settled law in Mississippi is that, if the defendant is a nonresident, and the thing involved, the res, is within the territorial jurisdiction of the court and is brought under the control of the court by legal process, viz.,* attachment against the lands,‘or attachment and' garnishment against any such debtor and resident persons (defendants) who have in their hands effects of, or are indebted to, such nonresident debtor, then the state court has jurisdiction to render judgment, not against the nonresident in personam, but against the thing, the res, when it its brought under the control of the court by its process, and not otherwise.

The basis of the jurisdiction of the chancery court in this case is statutory; and the court has no jurisdiction under the statute unless the following facts exist, viz., the absence of the debtor, the presence here of effects in the hands of resident persons belonging to him, or debts due to him by resident persons, or his having lands or tenements in this state. Section 536, Code of 1906; Advance Lumber Co. v. Laurel National Bank, 86 Miss. 419, 38 So. 313. The above facts, or any one of them, might exist, and still the court would be without jurisdiction to proceed to judgment against the thing unless it be first brought under the control of the court by proper process, against the land, or against the person having the effects belonging to, or owing the debt to, the nonresident defendant.

When the law is applied, as stated above, in the case before us, we find no difficulty in deciding that the decree of the chancellor in dismissing complainant’s bill was eminently correct. Pennoyer v. Neff, 95 U. S. 714, 24 L. Ed. 565; Cooper v. Reynolds, 10 Wall. 308, 19 L. Ed. 931.

The suit of complainant (appellant) amounts to an effort to sue itself. It finally abandoned its ■'attachment proceedings, as prescribed by the statute, and now relies upon the doctrine of equitable offset, and seeks to have the court allow it to complain against the absent debtor, and, at the same time, bring itself into court as the resident defendant “owing the debt” to the absent debtor. No writ of garnishment is here involved, and the money was not paid into court; but, in effect, complainant attempts to take the part of the garnishee and answer an indebtedness1 due under its own writ; and in the same hill which seeks, in effect, to obtain a personal decree in damag’es for breach of contract, it prays that the indebtedness dne by it be offset by the personal decree for damages, when obtained.

The contention of appellant that, because the debt of nine thousand, nine hundred and seventy-three dollars due by it to the nonresident defendant is within the territorial jurisdiction of the court, the court was authorized to proceed in rem, is not sustained by the best authority, and we thinks is unsound.

The thing, the res, must first be brought under the control of the court by proper process; then the judgment can only go against the thing under the control of the court. In the case here no process is shown to have been issued and executed, and could not have been, to bring “the res” under control of the court, and the thing, the res, is not under the control of the court, and therefore the court has no jurisdiction. If the rule were otherwise, fraud against absent debtors could be easier consummated in cases like the one here.

The decree of the lower court is affirmed.

Affirmed.