Stone v. Drake
96 S.W. 197
Ark.
1906
Check Treatment
Wood, J.,

(after stating the facts.) , The question presented by overruling the demurrer to the third paragraph of appellee’s answer is:

“Can appellant, a citizen of Arkansas, garnish the Texas & Pacific Railway Company, a foreign corporation of the State of Texas, that has a track and runs trains in Miller County, Arkansas, and has an agent there, for a debt due one of its employees for labor performed in the State of Texas, the employee being a citizen and resident of the State of Texas, and such wages by the laws of said State not being subject to garnishment?”

1. In Kansas City, Pittsburg & Gulf Ry. Co. v. Parker, 69 Ark. 401, we said: “The situs of a debt, for purposes of garnishment, is not only at the domicil of the debtor, but in any State in which the garnishee may be found, provided the law of that State permits the debtor to be garnished, and provided the court acquires jurisdiction over the garnishee through his voluntary appearance or actual service of process upon him within the State.” True, the debt due by the railway company in that case was for labor performed in this State. But, in our opinion, that makes no difference. While, as we said in Kansas City, etc., Ry. Co. v. Parker, supra, there is great contrariety of judicial opinion upon the question, yet the doctrine there announced is sound, and supported by abundant authority. In addition to the authorities there cited, see Rood on Garnishments, § 245, and authorities cited in note. In Harvey v. Great Northern Ry. Co., 50 Minn. 405, Judge Mitchell, speaking for the court, said: “While, by fiction of law, a debt, like other personal property, is for most purposes, as, for example, transmission and succession, deemed attached to the person of the owner, so as to have its situs at his domicil, yet this fiction yields to laws for attaching the property of non-residents, because such laws necessarily assume that the property has a situs distinct from the owner’s domicil. For such purpose a debt has situs wherever the debtor or his property can be found. Wherever the creditor might maintain a suit to recover the debt, there it may be attached as his, property, provided, of course, the laws of the forum authorize it.”

Under our statute, Drake, the original defendant, a nonresident, could have maintained an action against the appellant for his wages in this State by giving bond. Section 959, Kirby’s Digest.

Mr. Wharton, in his excellent work on Conflict of Daws, § 368a, cites the following cases as supporting the doctrine that a debt due from a foreign corporation to a non-resident who is only constructively served with process is subject to garnishment in a State in which such corporation does business, although the debt is not payable in that State, and did not arise out of business transacted therein. Mooney v. Buford & G. Mfg. Co., 72 Fed. Rep. 32; Nat. Fire Ins. Co. v. Ming (Ariz.), 60 Pac. 720; Lancashire Ins. Co. v. Corbetts, 165 Ill. 592, 36 L. R. A. 640, 56 Am. St. Rep. 275, 46 N. E. 631; Missouri Pac. R. Co. v. Flannigan, 47 Ill. App. 322; German Bank. v. American Fire Ins. Co., 83 Ia. 491, 32 Am. St. Rep. 316, 50 N. W. 53; Pittsburg, C. C. & St. L. R. Co. v. Bartels, 108 Ky. 216, 56 S. W. 152; Howland v. Chicago, R. I. & P. R. Co., 134 Mo. 474; 36 S. W. 29; Natl. Fire Ins. Co. v. Chambers, 53 N. J. Eq. 468, 32 Atl. 663; Fithian v. New York & E. R. Co., 31 Pa. 114; Datz v. Chambers, 3 Pa. Dist. Rep. 353; Neufelder v. German-American Ins. Co., 6 Wash. 336, 32 L. R. A. 287, 36 Am. St. Rep. 166, 33 Pac. Rep. 870.

We have examined these cases, and they support the doctrine we have announced. See also to the same effect Chicago, Rock Island & Pac. Ry. Co. v. Sturm, 174 U. S. 710.

2. It is a well established rule that exemption laws are not a part of the contract. They pertain to the remedy, and are subject to the law of the forum. Wharton on Conflict of Laws, § 791a, and numerous authorities cited in note, among • them Chicago, R. I. & P. R. Co. v. Sturm, 174 U. S. 710; 12 Am. & Eng. Enc. Law, 793, note; 18 Cyc. 1376. The amount due from appellant to Drake for wages was not exempt from garnishment under our laws. Appellee had obtained judgment against Drake. Section 3695, Kirby’s Digest.

The judgment of the circuit court is reversed, and the cause is remanded with directions to sustain the demurrer to the third paragraph of appellant’s answer, and for further proceedings not inconsistent herewith.