52 W. Va. 450 | W. Va. | 1903
This case involves the consideration of questions arising upon the invocation of the extraordinary legal remedy, prohibition, in restraint of the special and limited proceeding, known as garnishment. As prohibition lies only to restrain a court or other tribunal from proceeding without jurisdiction, or in excess of its jurisdiction, and as attachment is a purely statutory proceeding, the questions presented are, principally, jurisdictional in character, and perspicuity demands an inquiry into the nature of both proceedings. This should be preceded, however, by a statement of the case.
W. W.. Rogers, a citizen of Ohio County, doing a detective and collection business, and having taken, by assignment, a large number of claims from persons residing in Pennsylvania against employees of the Pennsylvania Railroad Company, a foreign corporation, which claims that it does not own or operate any railroad or do any business in this State, instituted, before D. Z. Phillips, a justice of the peace of Ohio County, more than four hundred suits against the said non-resident employees, on the accounts so assigned, and made the said railroad company a garnishee in each of them. The service of process, as to the garnishee, was by delivering a copy of the order of attachment "to J. J. McCormick, agent of the said garnishee in charge of its business, in the city of Wheeling, in said county, there being no other person within the State of West Virginia upon whom said order of attachment can be legally served.” In some of these cases, the railroad company appeared specially fot the purpose of objecting to the service of process upon it, and moved to be discharged because the order of attachment issued therein had not been properly or legally served upon it. After hearing the evidence and arguments of counsel upon the motion, the justice overruled it. .Then the garnishee filed its answer, admitting indebtedness, but claiming it was not liable
The bringing of these suits was commenced in July or August, 1901, any many judgments were rendered against the garnishee. On the 10th day of January, 1902, the Pennsylvania Railroad Company presented to a judge of the circuit court of Ohio Comity its petition, praying for a writ of prohibition to restrain Rogers and Phillips and each of them "from proceeding further in their said acts, doings and proceedings, and from instituting any other or further proceedings against” the petitioner "either in regard to the said claims of the said Rogers against”the petitioner, "arising out of the assignment of claims to the said Rogers by any person, against” the petitioner’s, "said employees residing in the said State of Pennsylvania.” In addition to the facts herein-before set out, the petition contains the following averment: “Your petitioner does not own and does not operate any railroad or any part of a railroad in the county of Ohio, or in the State of West Virginia, and does no business in the said last named State or county. There is, however, located in the said city of Wheeling, an agent of what is known as the "Star Union Line.” which is an association of several railroads, formed and kept up for the purpose of facilitating the handling of certain freight business, in the city of Wheeling. The name of said agent is J. J. McCormick, and the only service which was had upon your petitioner, in said suits, brought before the said Phillips, justice as aforesaid, by the said Rogers, was had by serving cop
A rule was awarded against Eogers and Phillips, returnable on the ICth day of January, 1902, which, on said date, was continued until the first day of February, 1902, when there was a final hearing, and the court discharged the rule, dismissed the petition and gave costs against the petitioner, and the cause is now hero on a writ of error to said judgment.
Attachment is no part of the general jurisdiction of any court. It is purely statutory, and though everywhere vested by statute in courts of general jurisdiction, it is still a special and limited power, resting upon its own peculiar grounds, acting in its own proscribed modes, and leading to its own specific results. Drake on Attach., sec. 83; Waples on Attach., secs. 635, 637. When jurisdiction by attachment is conferred upon, and exercised by courts of general jurisdiction, it is special, and unsupported by presumptions in its favor. Waples Att., sec. 639. The statutory prerequisites to attachment are jurisdictional. Waples Att., sees. 625, 627.
Attachment is in the nature of a proceeding in rein. There is an actual seizure of property, except where it is in the form of garnishment. In the case of garnishment, it retains its character as one in the nature of a proceeding m rem, althought there is no actual seizure of property under the order of attachment, for by service of the order upon the garnishee, it arrests the debt in his hands and holds it through him, subject to the judgment of the court. The claim subjected by garnish
Just here it is to be further observed that courts have no extra territorial jurisdiction over either persons or property in attachment suits. To maintain a proceeding, there must be jurisdiction over the one or the other or both. Waples on Attach., sec. G44. “Jurisdiction over persons and property, in any state, is confined to the persons and property within the territorial bounds of the State. No court within it can exercise jurisdiction beyond it. To exercise it over persons or property in another state would be an unwarrantable assumption and arrogation of unlawful authority, entitled to no respect on the principle of comity, but meriting rebuke and resistance as a wanton abuse of power. A judgment rendered in any state against á person or property over which the court has no jurisdiction is not entitled to Tull faith and credit’ in other states, but its validity may be questioned on jurisdictional grounds, and its enforcement resisted; for, not being by due process of law, it is entitled to no regard, even in the state where it is rendered; and it may be impeached collaterally anywhere.” Waples on
In exact alignment with this general proposition of law which is not questioned anywhere, it has been held by the courts o£ this country, with practical unanimity, that a non-resident cannot be subjected to the process of garnishment, although ■caught within the State temporarily and served with process. The moment that it is made to appear to the court that he is a non-resident, only temporarily within the State, without property or effects of the defendant in his possession in the. State, or owing him a debt payable within the State, the jurisdiction of the court ends. “In this country, the question has been repeatedly presented, and the uniform tenor of the adjudication establishes the doctrine, that whether the defendant reside or not in the State in which the attachment is obtained, a non-resident cannot be subjected to garnishment there, unless, when garnished, he have in the State property of the defendant in his hands, or be bound to pay the defendant money, or to deliver to .him goods, at some particular place in that State.” Drake on Attach., sec. 474; Wade on Attach., sec. 413; Waplcs on Attach., secs. 387, 393.
It is said that tire first announcement of this doctrine in this country was made by the Supreme Judicial Court of Massachusetts. In that State, the proceeding is called trustee process and the garnishee here would there be called the trustee. The reason given for holding that a non-resident cannot be subjected to garnishment is stated in Tingley v. Bateman, 10 Mass. 350, 352, as follows: “'The summoning of a trustee is like a process in rem. A chose in action is thereby arrested, and made to answer the debt of the principal. The person entitled by the contract or duty of the supposed trustee, is thus summoned by this species of effects. These are, however, to be considered for this purpose as local, and as remaining at the residence of the debtor or person entrusted for the principal; and his rights, in this respect, are not to be considered as following the person of the debtor, to any place where he may be transiently found; to be taken there at the will of a third person, within a jurisdiction where neither the original creditor nor debtor reside.” It is further stated in said opinion in the process of foreign attachment, by the custom of London, out of which our
In 14 Am. & Eng. Enc. Law (2d ed.), 815, it is said: “Under statutes providing generally for summoning, as garnishee, persons indebted to the defendant, or having in their possession property belonging to him, it has been held that non-residents were exempt from liability to be so summoned though found temporarily within the State, and in some jurisdictions the statutes have expressly provided that only residents of the State shall be so summoned. On the other hand, there are statutes which expressly provide that non-residents may be summoned as garnishees, and by the weight of authority it seems that the mere fact that a person is a non-resident does not exempt him from-liability to be so summoned when the question is not affected by the situs of the res sought to be reached by the process.” A hasty reading of this might lead one to say that it is in conflict with the general proposition heretofore announced, but it is not. The distinction between summoning the garnishee, by which jurisdiction over his person is acquired, and the obtaining of jurisdiction of the res, the claim sought to be subjected must be observed. If a non-resident be found temporarily within
But two cases have been found which completely ignore the principle that a non-resident cannot be neld as garnisnee, when it is shown that he is a non-resident and has no effects of the debtor in his possession within tbe State and owes him no debt payable within the State. They are Molyneux v. Seymour, 30 Ga. 440, (76 Am. Dec. 662), and Morgan v. Neville, 74 Pa. St. 52. Both of these cases not only ignore that proposition but fail to distinguish attachment, which is a special limited statutory proceeding, from proceedings in which the courts exercise general jurisdiction, and in which strict compliance with the requirements in matters of procedure is not ordinarily jurisdictional, as we have seen that it is in attachment and garnishment. Where the action is in personam, jurisdiction of the person of the defendant is plenary jurisdiction, giving the court full power for all purposes of the action. But in garnishment, as we have seen, jurisdiction of the person of the garnishee is only partial jurisdiction. It is generally so held. ¥o attention whatever was paid to this distinction in two cases named. The Pennsylvania
This question seems never to have been raised nor passed upon in this State. But two cases, not like, but, in some respects, similar to this, have been decided. Mahany v. Kephart, 15 W. Va. 609, and Stevens v. Brown, 20 W. Va. 450. By reference to them it will be seen that in each the B. & 0. Railroad Company was proceeded against as garnishee and debtor of a non-resident person, and that the jurisdiction was sustained upon the ground that said railroad company maintained and operated its road in the State of West Yirginia and it was pointed out in the opinion that it had been held in Hart v. Railroad Co., 6 W. Va. 336, that tho acts of the legislature had conferred corporate powers and privileges upon said railroad company, and that said railroad company is an incorporated railroad company within the boundaries of this State, and that the court would take judicial notice of tho fact. It is thus seen that it was found and expressly determined, in order to uphold the jurisdiction of the court, that the railroad company was within the State of West Yirginia, and subject to its process. While it is not said that it was domiciled in this State, somewhat stronger language was used, importing that it was substantially a domestic corporation. In Mahany v. Kephart, the following is quoted from Drake on Attach., sec. 479: “Where, as is sometimes the case, a corporation is chartered by two or more States, it is not in any of those States a foreign corporation, and may be subjected to garnishment in any of them, though its office and place of business be not in the State in which the garnishment takes place.” The other case, Stevens v. Brown, was disposed of, and the jurisdiction sustained, upon the same grounds. As tending
■ The principle which forbids garnishment of a non-resident individual temporarily in the State, applies to foreign corporations. Unless doing business within the State, they are not subject to garnishment therein. This is the only extent to which the rule is relaxed in such cases. “Owing to the growth of corporations and the transaction of their business in jurisdictions other than those in which they were incorporated, there are statutes in practically all jurisdictions which authorize the service of process upon certain officers or agents of foreign corporations, and a foreign corporation transacting business in a jurisdiction in which such statutes exist, impliedly submits itself to the jurisdiction of the courts therein, and may be -summoned as garnishee, if corporations and non-resident individuals are liable to bo so summoned.” 14 Am. & Eng. Enc. Law, (2d ed.), 816. Observe that this rule says they may be summoned. It does not say that, by summoning them, under such circumstances, jurisdiction of the res is obtained. It is not enough in such cases to confer such jurisdiction that jurisdiction of the person of the garnishee may be obtained, any more than in the case of an individual. “A corporation frequently does business at the same time in several different States, and it is liable to garnishment in any one of them where it has an officer upon whom process may be legally served, if it has property of the defendant there. If a corporation is chartered in different States, it has corporate existence in each, as a matter of course, and may be treated in each as a resident. But if not
The garnishee sought to be held by the justice in this State, admitted in its answer that it owed the defendant $24.00. As •it was bound to answer fully, if at all, and make a full disclosure of all the estate of defendant in its hands, and this, answer was not controverted or excepted to, the answer amounts to a denial that the railroad company had anything in its hands except said sum of money, and substantially denied that the sum was payable in the State of West Virginia. By the same answer it averred that it was a citizen of the State of Pennsylvania, that Snyder was a citizen of said State, and that said sum was due for wages earned in Pennsylvania under a contract made in Pennsylvania. Being uncontroverted, the answer must be taken as true as to all these matters. It negatives any liability to the defendant in West Virginia, either for money or on account of property, and also the jurisdiction of the court because of the non-residency of the garnishee. 'The uncontroverted averment that the money was due on account of wages earned in Pennsylvania under a contract there made, gives rise to the legal presumption that it is payable in Pennsjdvania. Hefflebower v. Detrick, 27 W. Va. 16. That negatives, any mere presumption of money agreed to be paid to Snyder in this State. The petition admits, however, that the railroad company had some connection with the "Star Union Line” of which McCormick was agent, but denies that the railroad company itself was doing business in the State. The existence of this “Star Union Line" and its operations in
The justice was without jurisdiction for another reason. The return of service of the order of attachment is clearly insufficient. It does not show that McCormick, the agent, resided in the county of Ohio. The service was evidently made under section 35 of chapter 50 of the Code. Section 38 of the same chapter provides that service, under any of the preceding four sectipns, shall be made in the county in which the person ■served resides and that the return must show that he resides in the county. It says further that, if the return does not show this, tho service shall not be valid. In Taylor v. Railroad Co., 35 W. Va. 328, it has been decided that a judgment based on a return of service not showing that fact, is void, there having been no appearance. To the same effect is Frazier v. Railroad Co., 40 W. Va. 224; and the doctrine-is approved in Hopkins v. Railroad Co., 42 W. Va. 535, and Ry. Co v. Wright, 653.
This defect of service would be cured by an appearance in an action in, personam, and especially in a justice’s court, for section 33 of chapter 50 of the Code provides that an appearance by the defendant is equivalent to personal service. But it does not show that an appearance by a garnishee shall be equivalent to personal service, and to construe it to mean that would do violence to the spirit of the law of garnishment, bfor does the statute anywhere provide that' a garnishee may confer jurisdiction by his appearance without service of process. Section 197, relating to that subject, requires the delivery of a copy of the order of attachment to the person designated by the plaintiff as garnishee, and there is no provision for his appearance until after that is done. Why is this ? The garnishee is a stakeholder and must be impartial. He cannot voluntarily place his creditor’s debt within the jurisdiction of a
The whole case rests upon the sufficiency of the proceeding against the garnishee, to arrest in its hands the right of the defendant to the debt sought to be subjected. In such case, the court’s jurisdiction depends upon something having been seized. Without it, no suit can be maintained against the garnishee. The case is quite different from one in which the defendant has been served or has appeared, and is in a position to take his own exceptions to the proceedings on the ground of insufficiency. Waples on Attach., sec. 474. “The return of the writ must state all of the facts that are essential to a valid service thereof. It must be certain, and must show that the property was attached in the hands of the garnishee, or the court acquires no jurisdiction over the res. The return should also state 'on whom the writ was served, and the time when Service was made. It must recite the performance of those acts required by the statue as conditions precedent to a valid service in garnishment.” 9 Enc. PI. & Pr., 827, 828. “In order that the defendant may be concluded b.y the proceedings, it has been held necessary that there should have- been a proper service of process on the garnishee. The latter has no power to affect the rights of the defendant by voluntarily appearing as garnishee, and if he does voluntarily appear, the proceedings will afford no protection to him against subsequent liability to the defendant.” 14 Am. & Eng. Enc. Law, (2 ed.,) 885.
Counsel for defendant in error insist that jurisdiction is admitted by the plaintiff in error in its petition for the writ of prohibition. As before stated, that petition shows that employees of the company have instituted suits in equity in Pennsylvania to enjoin the petitioner from paying over their wages in satisfaction of the judgments rendered by Phillips in Ohio County, West Virginia. In the petition is incorporated the record of one of these chancery causes, namely, O. C. Galbraith v. R. M. Rutter, and the petitioner. The answer of the railroad company in that suit set up the Ohio County judgment against Galbraith and insisted upon its validity as a defense in the equity suit, and averred that the claim of 'Rutier was assigned to Rogers, that the attachment was issued by
As the justice was without jurisdiction of the res, the real subject matter, for two reasons, first, that the service of the process was invalid, and not cured by appearance, although appearance was made, and, second, because the subject matter itself is not in the State, nor subject to the process of its courts, the writ of prohibition prayed for ought to have been awarded by the court below. But it is insisted that, although jurisdiction was not acquired, the justice had the power to consider whether he had jurisdiction and to decide the question of jurisdiction, and that, if he did decide that he had jurisdiction, when -in truth he had not, his action in so holding was not without jurisdiction nor an act in excess of jurisdiction, but simply an error to bo corrected on appeal, and not an act without jurisdiction or in excess thereof, subjecting the court and the parties to the writ of prohibition. For this, Sperry v. Saunders, 50 W. Va. 70, (40 S. E. R. 449), and Howland v. Railway Co., 134 Mo. 479, are relied upon. The Sperry Case is not applicable. It only holds that a court has jurisdiction to determine whether a judgment is valid or invalid. That is purely an exercise of jurisdiction, the parties, being before the court and the validity of the judgment being brought into the court upon the proper pleadings. The Howland Case does not sustain the contention for it asserts that jurisdiction must be obtained, that is, power to hear and determine. It must have jurisdiction, not only of the person, but of the res, after which what is done by the court is merely the exercise of jurisdiction. Works on Courts and Jurisdiction, at page 634, says, “Prohibition will lie to prevent action where the court has not jurisdiction of the person as yell as in cases where there is an absence of jurisdiction of the subject matter.” It must have, jurisdiction of the subject matter. 16 Am. & Eng. Enc. PI. & Pr., 1094, 1110. Writ lies for excess of territorial jurisdiction. Idem, 1120. It is necessary for the defendant, as a gen
It is also objected that the prayer of the petition is defective, because too general. The substance of it has been given in the statement of the case. It seeks the writ as to all of the numerous cases mentioned in the list filed as an exhibit with the petition. It can only go of course, if at all, as to the one ease, the record of which is exhibited, namely, that of Rogers v. Snyder and the railroad company. This Court cannot presume that certain things appear, and certain defenses were
It is insisted that the decisions in the cases of Mahany v. Kephart and Stevens v. Brown to which reference has been made, ought to be re-examined and overruled in so far as they hold that the exemption laws of a foreign State have no extraterritorial force or virtue and will not be enforced by the courts of this State. As tested by the great weight of American authority, these two decisions are right and no good reason is presented why they should be overruled.
The court below sustained a motion to quash the rule and dismiss the petition, for insufficiency of cause shown for the issuance of the writ. The judgment, therefore, stands as one upon demurrer. It must be reversed, for the reasons shown, but judgment cannot now be entered, awarding the writ of prohibition. It is only held that the petition is sufficient and that the court below erred in not so holding, and in quashing the rule and dismissing the petition. Hence, an order will be entered reversing the judgment and, remanding the ease to the circuit court of Ohio County for further proceedings in accordance with the principles here announced and further according to law.
Reversed and Remanded.