24 N.M. 480 | N.M. | 1918
OPINION OP THE COURT.
.This is an action by appellee against the appellant as a common carrier. The complaint alleged that appellee, on February 26, 1916, shipped a carload of hay from Orchard Park, N. M., to Heflin, Ala. The usual bill of lading was issued to the appellee. While in transit the car was diverted, by order of the appellee, to Atlanta, Ga., ánd consigned to the order of R. E. Levers & Co., with instructions to notify L. D. Lowe. On arrival in Atlanta the car was refused by Lowe, and disposition thereof requested by the railway company. On March 30th, the hay in the car was levied upon and seized under a writ of attachment by the deputy marshal of the municipal court of Atlanta, Ga. A writ of garnishment was also served on the railway company, and prompt notice was given to the appellee and R. E. Levers & Co. And it otherwise appears that plaintiff had, prompt knowledge of the pendency of the action at Atlanta, Ga., and ample time and opportunity to protect its claimed title to the hay. Affidavits and claims to the property, first, by the First National Bank of Roswell, and, later, by the bank and appellee, were filed in the Georgia action. The railroad company answered as garnishee, stating in its answer: First, that it ha!d no money, property, or effects in its hands belonging to the defendant in that action, R. E. Levers & Co. By the fifth paragraph of its answer the railway company alleged :
“That at the time of the service of the said’ summons of garnishment garnishee had in its yards a carload of hay contained in Atchison, Topeka & Santa Fe Railway Company car No. 27612, which was consigned to L. D. Lowe, the waybill on Which showed it to have been shipped by the defendant herein; but this garnishee avers it is informed and believes that the said carload of hay belonged to the First National Bank of Roswell, N. M., and1 was not the property of the defendant.”
The Georgia court sustained the attachment proceedings, and ordered the property sold, and gave judgment for the attaching creditor in that action. The record before this court shows that the municipal court of Atlanta had jurisdiction of the subject-matter and of the parties, and such judgment is to have full faith and credit given it in the courts of this state. After the seizure of the hay, under process issued by the municipal court of Atlanta, appellee requested a diversion of the hay to Jacksonville, Ida. This action was instituted against the appellant for failure to carry and deliver the ear in accordance with the contract contained in the bill of lading. The court made findings of fact and stated conclusions of law, and entered judgment in favor of the appellee for the value of the hay in question. To review such judgment this appeal is prosecuted.
For the reasons stated, the judgment will be reversed, with instructions' to the lower court to enter judgment for appellant; and, it is so ordered.