70 Miss. 267 | Miss. | 1892
delivered tbe opinion of the court.
The appellee exhibited his bill in the chancery court of Yazoo county against Charles Dollman, a non-resident of this state, and against the board of school-trustees of Yazoo* City.
The bill alleges that Dollman is indebted to complainant for work and labor done by him in and about the erection of a school-building, which Dollman contracted to build, and did build, under a contract with said boai’d of trustees, and? that said board of trustees is indebted to Dollman in a sum.' in excess of the debt due complainant. The prayer is that the board of trustees may be directed to pay to complainant,, out of the funds in its hands due to Dollman, the amount he-owes complainant.
The board of trustees answered, admitting an indebtedness-to Dollman, but stating that the building had not been finished, and that it could not be known what amount, if any,, would remain in its hands. Subsequently the board filed another answer, stating that the building had been finished, and the board had in its hands the sum of $1,500 as balance due-on the building, but that since its former answer had been filed the board had received notice that Dollman had transferred his right to the fund to the Cole Manufacturing Company, which company it asked might be made a party to the-proceedings.
The Cole Manufacturing Company was admitted to defend, but, since it is not disputed that its claim to the fundi was by virtue of an assignment made by Dollman after-process served in the original proceeding, its answer need: not be considered.
Dollman demurred to the bill, and, that being ovemiled-,. he answered, and the cause proceeded to final hearing, when, a decree was made in favor of complainant,, from which decree Dollman and the Cole Manufacturing Company a,ppeak
1. That the proceeding is a statutory attachment in chancery, and that the demand sought to be subjected is not within the terms of the statute.
2. That it is against public policy to permit governmental agencies to be garnished, or drawn into controversies with private persons touching matters with which they have no concern, and that this immunity is not a mere privilege which may be waived by the body-politic, but is jurisdictional in character, and may be insisted on by any party to the suit, and at any stage of the proceedings.
3. A denial of the debt sought to be collected.
It is evident that the proceeding was instituted and prosecuted as one under our statute regulating attachments in chancery, and, if it be true that it can be supported only by the statute, it must fail if the statute has no application because of the character of the debt sought to be subjected to the-complainant’s demand. The provision of the code providing for attachments in chancery against non-residents is as follows:
“ The said chancery courts shall have jurisdiction of a>ttaehment suits against any non-resident, absent or absconding debtor, who has lands or tenements within this state, or against any such debtor and persons'in this state who have in their hands effects of, or are indebted to, such non-resident, absent or absconding debtor.” Code of 1880, § 1832.
It is not pretended that the defendant has lands or tenements in this .state. The statutory jurisdiction must, therefore, rest upon that clause of the statute giving attachment against a non-resident, absent or absconding “ debtor, and persons in this state who have in their hands effects of, or are indebted to, such non-resident, absent or absconding debtor.”
Is á municipal corporation a “ person ” within the meaning of the statute ?
Primarily, the word “ person ” means-a natural person, but
The word may or may not include the state or its subdivisions. 18 Am. & Eng. Enc. L., title Person; p. 403, note 2, where many authorities are collected.
Whether a state, or a municipality or other corporation exercising, a subdivision of its sovereignty, is included by the terms of a statute — not being expressly named — must be determined by a consideration of the subject-matter of the statute, its purpose and effect. When the statute primarily refers to matters foreign to the ordinary functions of public corporations, and imposes burdens, duties or liabilities upon them, without any corresponding benefits, the inference must be that it was not the legislative purpose that such corporations should be subject to its provisions. The inconvenience which would arise from subjecting these bodies, created for the performance of public functions, to be proceeded against as garnishees at law and in equity, and when a mere neglect to respond to the summons would subject the public represented by such corporation to the burden of a judgment for .the demand of the attaching creditor, is strongly persuasive against such construction of the statute as would include these bodies. We are, therefore, of opinion that the garnishee in this case was not a “person” having in his hands effects of, or indebted to, the non-resident defendant, and that the proceeding, in so far as it was based upon the statute, must fail.
It remains to be inquired whether, without regard to the statute, but under the general principles of equity, the decree should be upheld.
By the act of June 7, 1822 (Hutch. Code, 764), the Statutory remedy of attachment in chancery against non
It would be a surprising condition of affairs if a non-resident debtor owning property in this state to creditors resident here could never have been compelled to pay his debts-by the courts of this state exercising their common law jurisdiction. The authorities are numerous that, under such circumstances, resort' may be had to equity in the first instance.
In Farrar v. Haselden, 9 Rich. Eq. (So. Ca.), 331, the court said:
“ When a debtor is absent from this state, having property within the state which cannot' be reached by the ordinary process of law, it has been a practice much older than Kinloch v. Meyer (Speer’s Eq., s. c. 427) to grant relief in this court, as against such property, to the creditors of such absent debtor. In such case, he may have taken no steps to recover,,*275 or establish his demand at law, because the law afforded no process by which he could make his debtor a party in court.”
In Merchants’ Nat. Bank v. Paine, 13 R. I., 593, Durfee, Ch. J., delivering the opinion of the court, said: “ If it were true that the only reason for the rule is the exhaustion of legal remedies, we should not hesitate at all to assert the jurisdiction, for, very clearly, where no legal, remedy exists, none can be exhausted, and the reason for the rule would cease, and, with the reason, the rule itself. ' Cessante ratione legis, cessat ipsa lex. There is, however, another reason for the rule, namely, that a court of law is the proper tribunal, not only to afford a remedy for legal claims, but also to adjudicate them. It seems to be well settled, however, that a creditor may proceed in equity without getting a judgment at law, if his debtor be dead. And, if he can so proceed, if his debtor be dead, then there can be no insuperable reason against his so proceeding while his debtor is alive. Thompson v. Brown, 4 Johns. Ch., 619; O’Brien v. Coulter, 2 Blackf., 421; Steeve v. Hoagland, 39 Ill., 264; Whitney v. Kimball, 4 Ind., 546; Thorp v. Felty, 6 B. Mon., 6; Evingham v. Vanderbilt, 19 N. Y. Sup. Ct., 75; Offutt v. King, 1 McArthur, 312.”
The jurisdiction of courts of equity to afford relief to one not having reduced his demand to judgment against a nonresident defendant having property in the state, has been affirmed in many other cases. Scott v. McMillen, 1 Litt., 302; Peay v. Morrison’s Ex’r, 10 Gratt. (Va.), 149; Bank v. Whetman, 124 N. Y., 241; Pope v. Solomons, 36 Ga,, 541; Smart v. Abbett, 102 Ind., 233; Pendleton v. Perkins, 49 Mo., 565.
If the decision in Zecharie v. Bowers, 1 S. & M., 584, announced a rule"of property, we should, notwithstanding our dissent from it, adhere to the decision, on the principle of stare decisis; but such is not the case, and, its only effect being to deny a remedy, we feel no hesitation in declaring a. contrary rule, and overruling that decision.
We are not to be understood to say that a court of chan
We have examined the evidence, and are not prepared to disturb the conclusion of the chancellor on the facts, which was reached upon weighing conflicting testimony.
Affirmed.