Regina Flour Mills Co. v. Lehman

78 So. 515 | Miss. | 1918

Etubidge, J.,

delivered the opinion of the court.

The appellee filed a bill in the chancery court of Adams county against Both-Bobins Company, a corporation domiciled at Paragonld, Arkansas, the Regina Flour Mills Company, a corporation of St. Louis, Missouri, and the City Bank & Trust Company of Natchez, Mississippi, alleging that in May, 1917, appellee, through his agent, bought of Roth-Robins Company one car of Regina Mills flour at twelve dollars and twenty-five cents per barrel, delivered at Pine Bluff, Arkansas; that the complainant sold the said car to R. Yiener & Co., of Natchez, at thirteen dollars and ten cents per barrel, f. o. b. Natchez; and also that he bought another car from Roth-Robins Company, to be delivered at Natchez at a given price; and that the Roth-Robins Company had the flour shipped under this order by the Regina Flour Mills Company to R. Yiener & Company, with bill of lading attached in favor of the Regina Flour Mills Company; that Viener & Company paid the draft to the City Bank & Trust Company of Natchez, and the money was in the bank at the time of the filing of the bill and the serving of the garnishment under the ninety-six-hour law of the state of Mississippi and it was alleged “that there is now due complainant, as above shown, the sum of two hundred thirty-one dollars which- the said Roth-Robins Company and the said Regina Flour Mills Company owe to the ‘complainant and which they refuse to pay to the complainant;” that R. T. Lively, -the agent of complainant, had assigned all his rights to the complainant prior to bringing the suit. The suit was instituted under sections 536 and 537, Code of 1906,. sections 293 and 294, respectively, Hemingway’s Code. The process required by the statute was served upon the Bank & Trust Company, and publication was made to the Regina Flour Mills Company and Roth-Robins Company, both being nonresidents. The account attached to the declaration is made out: “Roth-Robins Company and Regina Flour Mills Company, to Jonas B. Lehmann, debtor.” The City Bank & Trust Company answered, admitting having the amount of money in its custody, but showed in its answer that it received the. draft and bill of lading from the Regina Flour' Mills Company. The Regina Flour Mills Company demurred to the bill, among other grounds, as follows:

“First. It appears on the face of the bill that there is no privity of contract between, the complainant and this defendant.

“Second. That it appears on the face of the bill that this defendant does not owe the complainant anything.

“Third. That it appears on the face of the bill that this defendant is a nonresident of the state of Mississippi, and that the defendant is sought to be held liable not for an indebtedness which it owes to complainant, but an indebtedness which it is alleged to owe a nonresident co-defendant, and that the section of the Code only authorizes attachment by way of garnishment against persons in this state who have in their hands effects of or are indebted to such nonresident, absent, or absconding debtor; that the bill shows on its face that the complainant claims that Roth-Robins Company owes him certain money, Roth-Robins Company being a nonresident, and seeks to attach the Regina Flour Mills Company for a debt which it owes to another nonresident, Roth-Robins Company.”

The chancellor overruled" the demurrer and granted an appeal.

We think the chancellor was correct in overruling the demurrer on the above allegations of the bill. The . statute, section 536, Code of 1906, section 293, Hemingway’s Code, reads as follows: 1 .

“Attachment Against Nonresidents. — The chancery court shall have jurisdiction of attachment suits based upon demands founded upon any indebtedness, whether the same be legal or equitable, or for the recovery of damages for the breach of. any contract, express or implied, or arising ex delicto against any nonresident, absent or absconding debtor, who has lands and 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 nonresident, absent or absconding debtor,” etc.

Under tbe allegations of tbe bill, tbe Begina Flour Mills Company shipped the 'flour with bill of lading attached covering the interest of the complainant, the Both-Bobins Company, and the Begina Mills Company. The complainant had an equitable interest in these funds for his profits on the sale, and under the allegations of the bill the Begina Flour Mills Company was an agent 'and trustee in making the shipment of flour for the Both-Bobins Company and the complainant. There is no doubt but what, if all the parties were residents, the complainant would be entitled to recover his interests from these funds. The statute of attachment in chancery goes further than the general statute on attachment at law and covers, not only legal claims, but equitable claims and torts. The case is affirmed and remanded.

Affirmed and remanded.