54 So. 728 | Miss. | 1911
This is an attachment suit in the chancery court, brought under the authority of section 536 of the Mississippi Code of 1906. A. J. Lyon & Co., complainant in the court below and appellee here, sued out an attachment in the chancery court of Lauderdale county, Mississippi, against the Southern Pacific Company and New Orleans & Northeastern Railroad Company. The Southern Pacific Company is a nonresident of the state of Mississippi, and has no lines or agents in the state of Mississippi. The New Orleans & Northeastern Railroad Company is a Louisiana corporation, with its general 'offices in New Orleans, Louisiana, but owns and operates a line of railroad in the state of Mississippi. The com
The second ground of the demurrer, claiming that no cause of action was set out in the bill because the contract sued on, to wit, the bill of lading, shows that the Southern Pacific Company undertook only to transport said car from Fresno to El Paso, and that the terms of said bill of lading were in conflict with the g’eneral averments of the bill, is not well taken. The view asserted by the demurrer is too narrow. The bill of lading must be taken as a whole, and it provided that the Southern Pacific Company should deliver the car to the Queen & Crescent System at New Orleans, Louisiana. The demurrer, of course, admitted this allegation. As a matter of fact, the goods were transported beyond El Paso, more than one thouaand miles to New Orleans. Taking all the provisions of the bill into view, this ground of demurrer was not well taken. And this brings us to the serious controversy in the case, which is whether the doctrine announced in the case of Railroad Co. v. Smith, 70 Miss. 344, 12 South. 461, 19 L. R. A. 577, 35 Am. St. Rep. 651, is sound. It is in direct conflict with three decisions of the United States Supreme Court: Chicago, & Rock Island Railroad Co. v. Sturn, 174 U. S. 710, 19 Sup. Ct. 797, 43 L. Ed. 1144; L. & N. R. R. Co. v. Deer, 200 U. S. 176, 26 Sup. Ct. 207, 50 L. Ed. 426; and Harris v. Balk, 198 U. S. 215, 25 Sup. Ct. 625, 49 L. Ed. 1023.
A great deal of the confusion on this subject arises from a too superstitious regard for what is called the situs of the debt. In the case supra, in 174 U. S. at page 714, 17 Sup. Ct. 799 (43 L.Ed. 1144), it is said that: “Our attachment laws had their origin in the custom of
In the case of Harris v. Balk, supra, the court said: “Attachment is the creature of the local law; that is, unless there is a law of the state providing for and permitting the attachment, it cannot be levied there.- If there he a law of the state providing for the attachment of the debt, then if the garnishee be found in that state, and process he personally served upon him therein, we think the court thereby acquires jurisdiction over him, and can garnish the debt due from him to the debtor of the plaintiff, and condemn it, provided the garnishee could himself he sued by his creditor in that state. We do not see how the question of jurisdiction vel non can properly he made to depend upon the so-called original situs of the debt, or upon the character of the stay of the garnishee, whether temporary or permanent, in the state where the attachment is issued. Power over the person of the garnishee confers jurisdiction on the courts of the state where the writ issued. Blackstone v. Miller, 188 U. S. 189, 206, 23 Sup. Ct. 277, 47 L. Ed. 439. If, while
There does not appear to us, after the most mature consideration, any satisfactory answer possible to be made to the force of the reasoning in this case.- It is extremely desirable that, upon questions of this sort, this court would be bound to follow the United States Supreme Court. It is obvious that whenever a case might arise, where the judgment of a sister state in this
The above opinion is adopted as the opinion of the court, and, for the reasons therein stated, the decree of the chancery court overruling the demurrer is affirmed, and the cause remanded for answer, to be filed within thirty days from the filing of the mandate in the court below.