Knittle v. Ellenbusch

Nov 13, 1916
File No. 3914
Reporters:
, ,
Before:
Whiting
WHITING, J.

Appeal from a judgment against a garnishee defendant, and from an order denying such garnishee a new trial.

There was no personal seryice of summons within this state nor appearance by the defendants in the-main action. There was service on such defendants in the state of Nebraska. The garnishee summons was served upon the garnishee within this state. No judgment was rendered against the garnishee until after a judgment had been entered against the main defendant, but the trial upon the issues joined on the garnishee’s disclosure had been had prior to the rendition of the judgment in the main action.

[1, 2] Appellant contends that, under our statute, no judgment. can be rendered against a garnishee defendant until there has been a judgment in personam entered against the main defendant. There was not and could not have been a judgment in personam in this case. Pennoyer v. Neff, 95 U. S. 714, 24 L. Ed. 565. When the judgment was entered in the main action the court was advised of ‍​​​​‌​​‌‌‌​‌‌‌​​‌‌‌​​​‌​​​​​‌‌‌‌‌​‌‌‌‌‌​​‌​​‌​​​‌​‌‌​​​​​‌​​‌​​​​‌​‌‌​‌​​‌‌‌‌​​​​‌​‌​‌​​​‌‌​​‌‌‌‍what, if any, property belonging to the main defendants and in the possession of the garnishee, or what, if any, indebtedness due from the garnishee to such defendants, had been brought within the control of the court by the garnishee process. If the garnishee process had reached any such property or indebtedness, then the trial court had jurisdicton to enter up a judgment against the main defendants, which judgment could be satisfied through such judgment as might be rendered against the *26garnishee. State ex rel. Bank v. Circuit Court, 32 S. D. 573, 143 N. W. 892; Holfond v. Trewella, 36 Wash. 634, 79 Pac. 308.

[3] Under the facts of this case, could appellant be holden a-s g‘arnishee? Appellant questions the sufficiency of the evidence to support some of the findings made Iby the trial court, but we believe the evidence ample to show the following facts: Appellant was arid is a resident of this state. Respondent and def‘en riant Kllenbusch were residents of Butte, Neb. The latter was the owner of a stock of merchandise at Butte, and was indebted to respondent upon the debt sued on in the main action. Under those circumstances, Kllenbusch sold the whole of such stock of merchandise to appellant. T11 making such sale the parties thereto failed to comply with the provisions of the Bulk Saks Law of Nebraska. Appellant paid Kllenbusch in full for said stock, and lie has since sold the greater portion thereof. The value of the stock purchased far exceeded the amount of the debt from Kllenbusch to respondent, upon which debt respondent obtained judgment in the main action against Kllenbusch. From such facts it is apparent that, between Kllenbusch and appellant, there never existed any right of action in Kllenbusch’s favor, and the general rule is that one can be holden as a garnisb.ee only when he is liable to the principal defendant. To apply such rule to this case would prevent respondent obtaining any relief ’ through garnishment. But, under the gieat weight of authority, the ‍​​​​‌​​‌‌‌​‌‌‌​​‌‌‌​​​‌​​​​​‌‌‌‌‌​‌‌‌‌‌​​‌​​‌​​​‌​‌‌​​​​​‌​​‌​​​​‌​‌‌​‌​​‌‌‌‌​​​​‌​‌​‌​​​‌‌​​‌‌‌‍ordinary rule has no application where one has accprircd the property of a debtor through a sale that is void as to his creditors. In such case, under stautes like our garnishee law (chapter 156, Laws kjoq), the purchaser can be holden for such goods as a garnishee (Stannard v. Youmans, 100 Wis. 275, 73 N. W. 1002). This holding is applicable to sales void ‘because not in conformity with a Bulk Sales Law. Musselman Grocery Co. v. Kidd, Daler & Price Co., 151 Mich. 478, 115 N. W. 409; Kohn v. Fishbach, 36 Wash. 69, 78 Pac. 199, 104 Am. St. Rep. 941; Jaques & Tinsley Co. v. Carstophen Warehouse Co., 131 Ga. 1, 62 S. E. 82; Friedman v. Branner, 72 Wash. 338, 130 Pac. 360. It has been so held in Nebraska in cases where the sales failed to comply with the very Bulk Sales Law involved in the present action and where, as in this case, the vendee had resold the property. Appel *27Mercantile Co. v. Barker, 92 Neb. 669, 138 N. W. 1133; Interstate Rubber Co. v. Kaufman, 98 Neb. 562, 153 N. W. 585.

[4] It is therefore clear that, if this action .had been brought in Nebraska and appellant served as garnishee, he would have been holden to the amount of the judgment in the main action. But it is fundamental that no law has any effect, of its own force, beyond the limits of the sovereignty from which its authority is derived, and the extent to which the laws of one- state or nation are allowed to operate within the dominion of another depends on what is termed “the comity of nations.” 5 R. C. L. 908; Story Coufl. L. § 244; 2 Kent’s Com. 457. Appellant contends that, inasmuch as there was no law of this state in force at the time of this sale, under which this sale would have been void as to creditors if the property had been- situate in this state, there is no rule of comity under which the courts of this state should impose upon one of her citizens a personal liability resulting ‍​​​​‌​​‌‌‌​‌‌‌​​‌‌‌​​​‌​​​​​‌‌‌‌‌​‌‌‌‌‌​​‌​​‌​​​‌​‌‌​​​​​‌​​‌​​​​‌​‌‌​‌​​‌‌‌‌​​​​‌​‌​‌​​​‌‌​​‌‌‌‍as an incident flowing from such foreign law. Appellant refers to the well-established rule that:

“Foreign laws are not regarded where they conflict with our ■own regulations, our local -policies, or do violence to our views of religion or public morals. The -principles of comity -do not require the. courts of one state to enforce rights under the statutes of another, to the prejudice of -our own citizens nor when complete justice cannot be done.” 1 Lewis Sutherland, Statutory Construction, 24.

To what extent is the rule of comity to be understood a-s restricted under the above declaration? It is perfectly apparent that, if -comity -is so restricted that a substantive law -of the state of the contract will be disregarded whenever the state -of the forum does not have the same law, the doctrine of comity becomes a farce. If is also a farce if a citizen of this state, who- enters into a contract in a foreign state, will not be -held to- the effects of such contract by the courts of this state simply because so to hold him would be “to the prejudice of our own citizen.” Excellent illustrations of the recognized limitations of the rule of comity are: Courts will not enforce a foreign mortgage lien against those citizens of the state of ‘the forum who are not parties to the mortgage, whefé the mortgage has not been recorded in the state of the forum. Miles v. Oden, 8 Martin (N. S. La.) 214, 19 *28Am. Dec. 177. Courts would not enforce the provisions of a will made in a foreign state, which will attempted to emancipate a slave domiciled in the state of the forum, the latter state having a statute prohibiting’ the emancipation of slaves. Mahorner v. Hooe, 9 Smedes & M. Miss. 247, 48 Am. Dec. 706. Courts will not enforce a claim based upon the sale of intoxicating liquors sold in a foreign state in contemplation that such liquors should thereafter be sold in violation of the laws of the ‍​​​​‌​​‌‌‌​‌‌‌​​‌‌‌​​​‌​​​​​‌‌‌‌‌​‌‌‌‌‌​​‌​​‌​​​‌​‌‌​​​​​‌​​‌​​​​‌​‌‌​‌​​‌‌‌‌​​​​‌​‌​‌​​​‌‌​​‌‌‌‍forum. Smith v. Godfrey, 28 N. H. 379, 61 Am. Dec. 617. Courts will not enforce a contract made in a foreign state by a citizen of the state of the forum, even though the contract be valid in the foreign state, if, under the laws of the state of the forum, her citizen had not legal capacity to enter into such a contract. Armstrong v. Best, 112 N. C. 59, 17 S. E. 14, 25 L. R. A. 188, 34 Am. St. Rep. 473. Courts will not enforce the laws of a foreign state in relation to the inheriting of personal property when the owner of such property is domiciled in and dies within such foreign state; the property is situate in the state, of the forum; the person who would inherit under the law of the foreign state is not a resident of the state of the forum; and there are residing in -the state of the forum persons who, under the laws of such state, would be preferred to such resident of the foreign state. Succession of Petit, 49 La. Ann. 625, 21 South. 717, 62 Am. St. Rep. 659. Appellant has cited several cases in support of his contention that the courts of this state should not enforce any rights claimed by virtue of the Nebraska law. An examination of -these -cases discloses that in several questions of remedy were involved.

[5] We think that it is universally held that the rule of comity has no applicaton to matters of remedy, and that the remedy is always controlled iby the law of -the forum. 5 R. C. L. 9x8. Thus if our statute (chapter 156, Laws 1909) did not provide for reaching by garnishee proceess one who held “property, moneys * * * and effects * * * -by a conveyance * * * void as to the creditors of the defendant,” the courts of this state would not enforce such a remedy simply because such remedy was provided’ by the -statutes of Nebraska. An examination of the authorities ‍​​​​‌​​‌‌‌​‌‌‌​​‌‌‌​​​‌​​​​​‌‌‌‌‌​‌‌‌‌‌​​‌​​‌​​​‌​‌‌​​​​​‌​​‌​​​​‌​‌‌​‌​​‌‌‌‌​​​​‌​‌​‌​​​‌‌​​‌‌‌‍cited by appellant discloses that none of them present a situation at all analogous to that presented by the facts *29of this case. Under the established rule based upon comity between states and nations, there being present no peculiar circumstances which should prevent .the application of such principle of comity, the courts of this state will recognize that the ‘dominion of a foreign state over personal property belonging to> her citizens and situate within her borders is complete, and that she has a right to regulate its transfer. To enforce the law in question would in no manner violate any law of this state, nor would it infringe upon an}’ right of any citizen of this state. We therefore hold that the conveyance of this stock of goods tO’ appellant was void as to respondent; that appellant held such stock of goods as a trustee for respondent; that having disposed of the same he is liable as garnishee for the value thereof.

The judgment and order appealed from are affirmed.