11 Rob. 326 | La. | 1845
The plaintiff having obtained a judgment in the Circuit Court of'Adams county, Mississippi, against the Agricultural Bank, a corporation located in that county and State, for the sum of $7,778 23, with interest thereon at the rate of eight per cent per annum, from the 14th of December, 1842, and costs,, issued an execution thereon, which was returned “no property found”; whereupon he brought a copy of the record, and instituted a suit thereon in the Commercial Court, by attachment, making Samuel H. Lambdin a garnishee, to whom various interrogatories were propounded, for the purpose of ascertaining whether or not he was indebted to the defendants. The attachment was served on the 21st March, 1843, and the garnishee cited personally the same day.
On the 7th June, 1843, a judgment was rendered and signed by the judge of the Commercial Court, in which it is stated that, upon the production and filing of a duly certified copy of
In July, 1843, Lambdin appeared by counsel, and answered the interrogatories propounded to him. He says that he has no property belonging to the defendants in his possession, but that he and one William Bisland are indebted to said defendants, for which debt they, on the 13th of December, 1842, gave their note, in sólido, to the President, Directors and Company of the Agricultural Bank of Mississippi, for the sum of $42,425 87, payable twelve months after date, at the said bank, in Natchez; and that they also gave a bond at the same time, jointly and severally, promising to pay interest on the above-mentioned sum, at eight per cent per annum, from the date aforesaid. He further answered,.that the note and bond had been, on the 15th December, 1842, by an act of record in the office of the parish judge of the parish of Concordia, transferred to Brown, Brothers & Co.; but that he did not know of such transfer or assignment at the time of the service of the attachment in this case, nor for some time subsequently, when he was notified of it by Messrs. Tyler & Henderson, trustees, on the 5th April, 1843, as will more fully appear by a letter annexed to the answers, which letter bears date Sept. 4, 1843. With these answers Lamb-din files what his counsel calls a petition of intervention, in which he states the fact of being cited as garnishee, and his indebtedness as set forth in his answers; also the assignment of his note to Brown, Brothers & Co.; and he prays that they be cited, by their agent, Samuel Nicholson of New Orleans, to interplead and assert their rights, and if they fail to do so, after legal notice, that they be forever debarred from asserting any right or title to the note and bond described, and that he be preserved harmless from their neglect to appear and answer as required. Brown, Brothers & Co. were cited, and filed an exception to the jurisdiction of the court, averring that they
On the 29th January, 1844, on motion of the counsel of Lambdin, the garnishee, and contradictorily, as it is stated, with the counsel for the plaintiif, the court ordered that the judgment, given on the 7th June, 1843, making the judgment on which this suit is brought executory, be annulled, the same having been made through error; and it was also ordered, that counsel be appointed to represent the defendants, and that time be given them to correspond and answer. When this order was entered, the defendants were not represented, nor had Brown, Brothers & Co. answered to the merits. The counsel appointed by the court to represent the defendants, shortly after this, answered by a general denial; and, a short time after, the defendants appeared by counsel, and, without any exception to what had been previously ordered or decreed, alleged that the court had no jurisdiction, as no property of defendant’s had been attached. It is further denied that the plaintiff owned the notes originally sued on, and their production is required. A few days after this answer was filed, Brown, Brothers & Co. answered that defendants were largely indebted to them, and that the note of Lambdin and Bisland was delivered to secure them against loss on account of said debt, and for purposes more fully stated in an annexed act of subrogation from the bank to them, passed in the parish of Concordia, on the 15th December, 1842. To this answer the plaintiff replied, by denying that any assignment was made as alleged. He says the laws of the State in which the bank is situated, and by which it was incorporated, forbid any such transfer or assignment as is set up; that said transfer was made without authority from the board of directors, and that no notice was given of it to Lambdin previous to the attachment; that the bank was in insolvent circumstances, and that the alleged transfer was an improper attempt to give a preference to one creditor over another, and that Brown, Brothers & Co. have never accepted it.
At the trial, it was admitted that the Agricultural Bank was
The plaintiff gave in evidence a duly certified copy of the record, judgment and execution in his favor, rendered in Mississippi, the answers of Lambdin to the interrogatories, and the notice of Tyler and Henderson, trustees, to him of the assignment of his and Bisland’s notealso the first transfer of bills receivable and assets from the bank to Brown, Brothers & Co., passed before the parish judge of Concordia, in August, 1842. In behalf of Brown, Brothers & Co., the act passed on the loth December, 1842, assigning and pledging to them the note of Lambdin and Bisland, as additional security for the debt owing to said assignees, was given in evidence. The court below, after a full statement of the facts, and consideration of them and other topics, concluded that there was “ no other way to get rid of this entangled business except on the technical rule, that the plaintiff has a recognition of his judgment and an order for its execution, and his application for these is an abandonment of his attachment, and this order has not been properly annulled.” For this reason principally, and incidentally because the note was transferred before it became due, and because there is nothing to impeach the validity of the assignment, such being valid in Mississippi, where it will not be interfered with in favor of non-resident creditors; and further, because
The judge of the inferior court complains very much of the management of this cause, and the confusion produced by it; but it appears to have been plain enough until he allowed the application of Lambdin to cite in Brown, Brothers & Co., and persisted in keeping them in court, in spite of their exception to his “ Briarean jurisdiction,” as he calls it. There were before the court a plaintiff, with a demand liquidated by a judgment not open for investigation; a corporation located in another State, as defendants; and a garnishee making no objection to being drawn into the cause, and answering under oath that he was a large debtor of the defendants, but stating, by way of precaution, that he had, since he was cited as garnishee, been notified of an assignment of the note he owed, of which he had no previous knowledge.
As between the plaintiff and defendants, the demand of the former, is sufficiently established by the record.and judgment of the Circuit Court of Adams county. It is conclusive between the parties, both being before the court, and a verdict and judgment having been given upon the issues made. The defendants have no right to go behind that judgment, and again put the plaintiff upon proof of his demand. The garnishee admits that he gave his note to the defendants, for a much larger sum than the plaintiff claims, and interposes no obstacle to a judgment, if it be so rendered as to protect him, in the payment of it, from future liability. Lambdin acted correctly, in' stating in his answer the notification to him of the transfer of the note to Brown, Brothers & Co., and in requesting that they should be notified of the proceedings against him. He would be liable to pay a second time, if any injury should result from his withholding the information; but the court below was wrong in
The counsel for the defendants contends that an attachment cannot lie against a foreign corporation. We do not think there is any weight in the objection. Our reports contain numerous cases of the kind; and our jurisprudence on that point is too well settled to require further argument. He further says that the suit cannot be maintained, because nothing is attached; that the bank disclaims any right to the note, and has put it beyond its control; and that the plaintiff cannot reach it, as he cannot have any greater rights than the bank has. If this doctrine were admissible, it would be very easy for every debtor to defeat the claim of his creditor, by making a fraudulent assignment. But the counsel does not seem to recollect that the assignment made by the bank was not valid and complete against third persons, until notice had been given to the debtor. The note was not beyond the control of the bank in fact, because it has never gone out of the possession of Tyler, who was the president of the institution.
The judge below held that, as he had made the judgment rendered in Mississippi executory in this State, it dissolved the attachment, said order not having been legally annulled, wherefore he nonsuited the plaintiff. In this, we think, the court erred. In the first place, we think that said order could be, and was, properly annulled. If it were any thing at all, it was a judgment in favor of the plaintiff, never executed. It was his property, and he could consent to its being annulled if he thought proper. We suppose that the court below thought there were grounds for annulling it, when the order was made; and no one has ever complained of it, until the judge made it the means of escaping from the position in which he was placed. The defendants appeared by counsel long after the two orders were made, and pleaded to the merits, taking no exception to any previous proceeding in the case. This, we think, is a waiver of any previous irregularities in the case. As to the validity of the assignment, we do not consider it necessary to decide further than we have already.
L. Pierce, for a re-hearing. An attachment will not lie against a foreign corporation. McQueen v. Middleton Insurance Co., 11 Johns, pp. 6, 7. The articles of the Code of Practice show that such a writ will lie only against natural persons. Great reliance has been placed on the act of the legislature of Mississippi forbidding the transfer of notes by the bank; but this objection comes with bad grace from a plaintiff who endeavors, by pleading a local statute, made to prevent one creditor from obtaining an advantage over the others, to obtain the assistance of our laws in securing such an advantage for himself. Admitting that, since the decisions in that State, the law itself must he regarded as consti. tutional in Mississippi, are the courts of Louisiana bound to carry it into effect ? Are we to maintain all the prohibitory laws of Mississippi, and to treat as a nullity an act of pledge executed here, because forbidden there ? The Browns are not prohibited from obtaining security in Louisiana for a just debt, because forbidden by Mississippi to do so within her limits.
But the contract between the bank and Brown, Brothers & Co., was not a violation of the laws of Mississippi. It was not such a transfer as is forbidden by the law of that State, but simply a pledge. Hazard should have brought a direct action against Brown, Brothers & Co. to annul the pledge as illegal. Where title in third persons is sought to be divested, recourse must be liad to a direct action of revocation. 17 La. 659. 1 Rob. 437. Holmes v. Remsen, 20 Johns. 229.
The court have decided that Brown, Brothers & Co. could not be compelled to engage in this controversy; yet it has ordered Lambdin to pay to the plaintiff, to
Re-hearing refused.