45 W. Va. 734 | W. Va. | 1898
Lead Opinion
Mary A. Stewart, a married woman, was the owner of an hotel and furniture in New Cumberland; Hancock County, which was insured by the Northern Assurance Company, of London, England, which had its central or principal office in the United States, at Cincinnati, Ohio. A loss occurred by fire, which was duly adjusted at one thousand seven hundred dollars; and, before the money was paid to the assured, Porter & Co., a corporation doing business at .New Cumberland, brought an action before Louis Hauser, a justice of the peace, at Cincinnati, Ohj.0, on a store account against Mary A. Stewart, and sued out an attachment against the property of said Stewart, and cited the s.aid assurance company to answer as garnishee, as the debtor of said Stewart. In obedience to the summons duly served on it, the company appeared and answered, admitting its indebtedness to Stewart, when the justice heard the case, rendered judgment against the defendant, and issued an order against the garnishee requiring it to pay two hundred and fifty-one dollars and seven cents, the amount of Porter & Co’s judgment, which it did on the 16th of June, 1892. On the 27th of July, 1892, Mary A. Stewart brought her action against said assurance company in the circuit court of Hancock County, upon her pol
On the 15th day of May, 1897, the case being called, and neither party requiring a jury, by consent the matters arising bn the issue were submitted to the court in lieu of a jury; and the court having considered the evidence adduced and the arguments of counsel, rendered judgment for the plaintiff for the said sum of two hundred and fifty-one dollar’s and seven cents, and costs of the action. The defendant moved to set aside the finding and judgment, and grant it a new trial, on the ground that the same is con- ■ trary to the law and evidence, which motion the court overruled’, and the defendant excepted. The bill of exceptions shows that the proceedings before Justice Hauser were regular, and'the transcript thereof properly attested, cer-fied, and proved, and it was agreed by the parties that the transcript should not be copied into the record, and that, as proven, it established and proved every allegation of
Appellant’s counsel, in their brief, say : “The fact that Mary A. Stewart was a married woman, residing and contracting in a state where the laws at the time held her personal contract void, would, if it had been pleaded in the Ohio court, have been a complete defense to the action of Porter & Co., because the courts everywhere, in the exercise of their undoubted jurisdiction, give force and effect to the lex loci contractus.'" They further say : “There is no evidence that the garnishee knew that she was a married woman, and the law did not require it to be concerned with anv fact not affecting the jurisdiction of the court,” and cite Black, Judgm. s. 595, in support of their proposi
It is admitted by appellant that if plaintiff had appeared and pleaded the statute of her state as it then existed, in the action before Justice Hauser, the claim of Porter & Co. must have been defeated;'and yet with the full knowledge of the proceedings against her, and that she had no notice thereof, and could not be served with process, it stood by, and meekly paid out her money, in obedience to the justice’s order, without even attempting, so far as the record shows, to notify her of the jeopardy of her property in its hands, all of which “smacks” strongly of collusion, Appellant cites Virginia Fire & Marine Ins. Co. v. New York Carousal Mfg. Co. (Va.) 28 S. E. 888, in support of its special plea, the court there holding that “it is a settled mle, founded upon obvious principles of natural justice, that a garnishee cannot be lawfully compelled to pay the same indebtedness twice. Nothing can be more clearly just than that a person who has been compelled by a court of competent jurisdiction to pay a debt should not be compelled to pay it over again. Consequently, where he is in such a situation that, if charged as garnishee, this would be the result, he will not be chai'ged, unless his situation is due to his own fault or neglect.” In that case it is shown that the garnishee was guiltless of any fraud or collusion. It took all the necessary steps to prevent a recovery in a suit pending in a North Carolina court for the same debt, pleading the garnishment in the Virginia court, but to no avail. The North Carolina court refused the plea, and rendered judgment, and issued execution, and collected the money. When it pleaded the North Carolina judgment, execution, and payment in answer to the garnishment in
Appellee insists that Justice Hauser was without jurisdiction in the case, because of the facts set up in her special replication, and that the judgment rendered by said justice is void, and not entitled to the “full faith and credit” provision contained in section 1, Art. IV., Const. U. S. The appellee cites the case of Bowler v. Huston, 30 Grat. 266, where it is claimed the question is thoroughly discussed; but it cannot be said to cover the question raised in the case at bar. That was an action to enforce a personal judgment rendered by a New York court against Bowler, wherein there had been neither service of process nor appearance in person or by attorney. So, there was nothing upon which to found a judgment, and the record was an absolute nullity, and no question was raised of a judgment in rem, or involving a garnishee or substituted service in the case; and yet, under the statutes of New York, the judgment was a valid personal judgment as far as Bowler’s interest was concerned in the firm with which he was sued inN. Y. In Cooler v. Reynolds, 10 Wall. 308, in discussing the question of jurisdiction, Justice Miller says “By jurisdiction over the subject-matter is meant the nature of the cause of action and of the relief sought; and this is conferred by the sovereign authority which organizes the court, and is to be sought for in the general nature of its powers, or in authority specially conferred. * * * While the general rule in regard to jurisdiction in rem requires the actual seizure and possession of the res by the officer of the court, such jurisdiction may be acquired by acts which are of equivalent import, and which stand for and represent the dominion of the court over the thing, and in effect subj ect it to the control of the court. * * * So, the writ of garnishment or attachment or other form of service, on a party holding a fund which becomes the subject of litigation, brings that fund under the jurisdiction of the court, though the money may remain in the. actual custody of one not an officer of the court.” Under the statutes of the state of Ohio, Justice Hauser had general jurisdiction, within the limitations and restrictions con
While a judgment of a. competent court of any state that has jurisdiction over the person and subject-matter is conclusive upon the merits of the controversy in every state, I question the power of the court of another state, without service of process or voluntary appearance, to render a judgment on a contract that is absolutely void under the laws of the state where it is made, and upon which contract a judgment rendered by a court of such last-mentioned state is void, even upon process duly served. In D'Arcy v. Ketchum, 11 How. 165, it was held that “congress did not intend by the act of 1790 to declare that a judgment rendered in one state against the person of a citizen of another, who had not been served with process or voluntarily made defense, should have such faith and credit in every other state as it had in the courts of the state in which it was rendered.” That case was based on the statute of New York which provided that when joint debtors were sued, and one was brought into court on process, if judgment should pass for plaintiff he should have j udgment and execution, not only against the party brought into court, but also against other joint debtors named in the original process, in the same manner as if they had all been taken and brought into court by virtue of such process; but it should not be lawful to issue or execute any such execution against the body or against the sole property of any person not brought into court.
It could never have been contemplated by the framers of the Constitution of the United States to include among judgments entitled to “fullfaith and credit,” under section 1, Art. IV., a judgment obtained upon a contract absolutely void under the laws of the state where it was made, and upon substituted process. It may be said, then: Where is the protection afforded the garnishee in such case? On the other hand, what protection has the defendant, the creditor of the garnishee, in such a proceeding? The garnishee has better facilities for protecting his interests than the defendant. He is served with process. He knows of the proceeding. He can readily advise the
Note by
Since the foregoing opinion was handed down, I find the case of Railroad Co. v. Nash, (Ala.) 23 South. 825, decided in June, 1898, the syllabus of which is as follows:
“(1) The courts of one state have no jurisdiction to attach and condemn a debt due to and payable to a nonresident where he resides, by service of process on his debtor as garnishee, in the absence of personal service on the creditor within the state of the forum, or his voluntary appearance.
“(2) The payment by the garnishee of a judgment rendered for a debt against a nonresident without personal service within the state of the forum, or voluntary appearance, constitutes no defense to a subsequent suit by the judgment debtor against the garnishee.
“(3) The constitutional provision that ‘full faith and credit shall be given in each state to the public acts, records and judicial proceedings of every other state, does not apply to a judgment against a nonresident debtor, in the absence of personal service upon him within the state of the forum, or a voluntary appearance.”
Dissenting Opinion
(dissenting):
This case is important in principle, and, regarding the decision in it as plainly erroneous and contrary to the right of the defendant under the Constitution of the Uniled States. I must dissent.
My position is: The justice in Ohio had jurisdiction and authority under the law of Ohio to render the judgment
Mrs. Stewart could sue the company in Ohio, and therefore it could be garnished there. “Foreign corporations are subject to the process of garnishment in all cases in which an original action may be commenced against them in the courts of this state to recover the debt in .respect to which the garnishment process is served. * * * A foreign corporation doing business within the state may generally be made a garnishee in that state when, by the laws of the state, service of process may be properly made upon it therein; when according to the jurisdictional rule, the debt is pajmble within the state, or the corporation has within its control property belonging to the principal defendant.” 2 Shinn, Attachm. s. 493. “When there is seizure of the defendant’s property at the commencement of the action, or, in garnishment, what is equivalent to seizure at that time, namely, service of process upon the garnishee, accompanied in both cases by publication or other form of substituted service against a nonresident defendant, it is well settled that such process is due process of law in attachment suits,and that a judgment so rendered will divest the defendant of his title to such property, and will ^protect the garnishee from the danger ¡of double payment.” Reno. Nonres. s, 241. Sto. Molyneux v. Seymour, 76 Am. Dec. 671. 2 Black. Judgm. s. 852, says : “The judgment of a foreign court of competent jurisdiction, in a proceeding in the nature of a garnishment, is binding and conclusive, and affords a complete protection to the garnishee, and the money paid under it cannot be recovered back by the original owner of the debt in any action in another country.” Garnishment is a proceeding inrem binding everywhere (2 Shinn. Attachm. s. 486; 76 Am. Dec. 671; 1 Greenl. Ev. s. 543); at least so far as the property garnished and its owner are concerned. “The liability of property belonging to nonresidents to be attached and sold under leagal process is determined by the law of the state in which the property is actually situated, and from whose courts the pi'ocess issues, and is not determined by the
I would much prefer that the Court should give, as the reason for its decision, the reason given in Pierce v. Railway Co., 36 Wis. 288, and Morgan v. Neville, 74 Pa. St. 52, —that garnishee, to be protected, must notify his creditor, — than to place the decision on the untenable ground it does; though, with Thomp. Homest. & Ex. s. 864, I do not think notice necessary, as I have not found it suggested in other cases. Publication, as dictated by the law ot Ohio,
Note by
The assurance company doing- business in the Stale of West Virginia must be presumed to know the laws thereof, and, having insured the separate property of Mary A. Stewart, a married woman, must be presumed, after the custom of insurance companies, to know that she was a married woman, and what were all her rights and liabilities with regard to said property under the laws of said state, and therefore must be presumed to have known that her separate property was not subject to her husband’s control, nor liable for the payment of his debts; and, being under his coverture, she was entitled to be supported by him, and that any simple contract debt made in relation to such support was void as to her, and binding on her husband alone, and could not in any wise affect her separate property, as the laws of West Virginia then stood. Porter & Co., being residents of the State of West Virginia, must also be presumed to be fully cognizant of these matters, arid that their alleged claim was no debt against Mrs. Stewart, but binding on her husband alone. Knowing this, they seek a remote foreign tribunal, and upon a false and fraudulent affidavit, for they knew they had no debt which was enforceable against the separate estate of Mrs. Stewart; they invoke its aid to secretly seize and wrongfully appropriate her property, without her knowledge. She is given no notice of these proceedings, as such would be
Affirmed.