Wheat v. Platte City & Fort Desmoines R. R.

4 Kan. 370 | Kan. | 1868

By the Court,

Kingman, C. J.

The plaintiff commenced a suit in the Leavenworth district court, against the Platte City & Fort Desmoines E. E. Co., had an order of attachment issued against its property, and procured service, by publication, against the railroad company, and caused Mackay to be garnisheed.

The garnishee answered, showing that at the commencement of this action, the defendant was a foreign corporation, existing by virtue of the laws of Missouri, operating exclusively within that state, and holding all its offices there. That the defendants held bonds of the county of Leavenworth, to the amount of $300,000; that they were in the State of Missouri, and in the possession, there, of the garnishee, as treasurer of said defendants, and subject to the order of the board of directors of said defendants ; that he had no effects of the defendants, in this state, nor was he indebted to them, and that the same state of facts had continued up to the time of the disclosure'.

Upon this state of facts, the court below held that Mackay could not be held liable as garnishee for such bonds. To this ruling the plaintiff excepted, and brings the case to this court for review.

We think the court below decided correctly.

There can be no doubt that the law intended to give a remedy to the citizens of this state, within the state, whenever the person or effects of the debtor could be found in the state, so that the courts could exercise control over them. In this case, the debtor was a foreign corporation, holding its offices, and operating exclusively without the state. Their property was without the state; an officer of the corporation was-in the state, and the plaintiff sought to attach, in his hands, property that he held, as such officer, in the State of Missouri.

Neither the person, nor property, nor any debt of the defendant, was found in this state. What was there to give the court jurisdiction? That question is not before us in this case; we have only to deal with the decision as to the liability of the garnishee. As an officer of a foreign corporation, lie held, in another state, certain assets of such corporation, subject to the order and control of the directors thereof.

' Had the court ordered the garnishee to deliver the property, before he could have complied with the order, he would have been dismissed and rendered unable to comply with the order. He would then have been made the innocent and involuntary debtor of the plaintiff, having to pay him 85,000.00' for no wrong or default of his own. This would be an admitted hardship, and, fortunately, one not imposed by the law. For while the sections of the code, authorizing the process of garnishment, speak of the garnishee having possession of any property of the defendant, in general terms, not restricted to the state, still, these sections must be construed with reference to other parts of the code, so as to make the whole harmonious. Now by an examination of title 4 of the code, and the amendments thereto, it will be perceived that while some classes of actions are made local, and the place where others can be brought is specifically pointed out, the class to which this Gase belongs must be brought in the county in which the defendant or some one of the defendants reside, or may be summoned. There was no personal service in the case. It was brought under section 78 of the code, which provides for service by publication, where the defendant is a foreign corporation, having in this state property or debts owing to them, sought to be taken by any of the provisional remedies, or to be appropriated in any way. Having property or debts owing to them in this state, is one of the essential facts necessary to give jurisdiction, and it is such property or debts, sought to be taken by any of the provisional remedies. • So that when we come to examine the provisional remedies, we must test the language used by the limitations in that part of the code giving jurisdiction of the case, and when section 209 speaks of the garnishee having property of the defendants, it must be understood with reference to the jurisdiction given in section 78, and it would then be having property within the state. This is a necessary reading of the whole code on the subject, and is not only logical and reasonable, but avoids the manifest hardships that might and must follow such a construction as that contended for by the plaintiff in error.

The conclusion thus reached is sustained by the authorities generally, but the case of Childs & Co. ®. Digby (24 Pa., 23), apparently sustains the contrary doctrine ; but in that case the jurisdiction as to person was undoubted, inasmuch as both defendants and garnishee were both personally served; and in the reasoning, the court make one of the conditions necessary to enforce the process, that the garnishee “have the actual possession of the property, and the power to dispose of it.” Even if this case be sound law, still it would not uphold the views of the plaintiff in error, for in this case the garnishee had no power to. dispose of the property which is held, and essentially requisite in the case cited. The court seemed to entertain the view in that case, that a garnishee could be held liable for property that he held in another state, belonging to other parties. Butin the subsequent case, of Pennsylvania Railroad ®. Pennook (57 Penn. R., 244), the Supreme Court of that state review the doctrine of the case of Childs & Co. ®. Digby, and on full consideration, overrule it, and give satisfactory reasons therefor.

The decision of the court below, that Mackay was not liable, as garnishee, is affirmed.

All the justices concurring.