54 Mo. App. 147 | Mo. Ct. App. | 1893
Lead Opinion
— The petition in this case, •which, is for an injunction, alleged that both plaintiff and
It was further alleged that the defendant had sued the plaintiff by attachment in one of the courts of the state of Kansas, and had procured the process of garnishment in said suit to be served upon certain debtors ■of the plaintiff, who were its customers and had become indebted, to it for merchandise sold by it to them in this state where such indebtedness by the- terms of the sale of such merchandise, for which it was incurred,was made payable; that the plaintiff here, who wa,s the defendant in the attachment suit, was notified thereof by publication, and that judgment had been severally pronounced against the defendant and the garnishees therein. The petition fails to disclose the nature of the claim upon which the attachment proceedings were grounded. It appears that the plaintiff is a solvent corporation and that the defendants are about to take steps to compel by execution the garnishees to satisfy the amount of the judgments against them; that the garnishees, who are plaintiff’s customers, are in great danger of having to pay their indebtedness to plaintiff twice, which would frustrate the trade relations between the former and the latter to the great injury of the latter, etc. The prayer was that defendants be enjoined and restrained from enforcing and collecting the judgments against plaintiffs and the garnishees, etc.
The defendant interposed a demurrer to the petition on the ground that it did not state facts sufficient to constitute a cause of action. The court sustained the demurrer, and, the plaintiff electing to abide by its petition, judgment was given accordingly. The plaintiff brings the case here by writ of error. -
While it is undeniably true that under- the constitution of the United States and the act of congress passed in pursuance thereof (Constitution of United
The interposition of a court of equity of a state may be invoked by one of its citizens to restrain another of its citizens from prosecuting an attachment suit in a foreign state for the purpose of evading their domiciliary laws 'without violating any rule of comity existing between the states. Cole v. Cunningham, supra. Mr. Justice Stoby (Story’s Equity Jurisprudence, sections 899, 900) thus states the principle: “But although the courts of one country have no authority to stay proceedings in the courts of another, they have an undoubted authority to control all persons and things within their own territorial limits. When, therefore, both parties to a suit In a foreign country are resident within the territorial • limits of another country, the courts of equity in the latter may act in personam upon those parties, and direct them by an injunction to proceed no further in such suit.
It is further contended by the plaintiff that the petition shows that the Kansas debts which were the subject of the garnishment were, by the terms of the agreement by which they were created, made payable at the place of the domicile of the plaintiff in this state,, and that, therefore, the Kansas court was without jurisdiction to condemn the same. It is the well recognized rule of law that where it appears from the whole record of a court that it had no jurisdiction over the person or subject-matter, the judgment is void and will be so treated in a collateral proceeding. Hope v. Blair, 105 Mo. 35; Adams v. Cowles, 95 Mo. 507; Carr v. Coal Co., 96 Mo. 155; Brown v. Woody, 64 Mo. 548; Higgins v. Feltzer, 49 Mo. 155; Barlow v. Still, 65 Mo. 619; Napton v. Leaton, 71 Mo. 366.
The common law has never prevailed in Kansas unless adopted there by statute (Bain v. Arnold, 33 Mo. App. 631). Besides this, the proceeding by foreign attachment was unknown to the common law. Railroad v. Crane, 102 Ill. 258. We are, therefore, justified in presuming that the attachment law of Kansas is the same as our own. Bain v. Arnold, supra; White v. Charry, 20 Mo. App. 389; Hoffmeyer v. Losen, 24 Mo. App. 652; Flato v. Mulhall, 72 Mo. 522; Sloan v. Terry, 78 Mo. 623. Under, the statutes, of this state suit by attachment may be begun and prosecuted against a non-resident defendant and his lands, chattels and credits made subject thereto. The process of garnishment in attachment cases may be employed to reach
The plaintiff’s insistance is that the proceedings of the Kansas court are void for want of jurisdiction for the reason that the debts garnished had no situs in that state, and that consequently they were not liable to be attached there. Contracts respecting personal property and debts are now universally treated as having no situs or locality; and they follow the owner in point of right. They are deemed to be in the place and are disposed of by the law of the domicile of the owner wherever in point of fact they may be situate in accordance with the maxim mobilia non habent situm Story on Conflict of Laws, secs. 362, 399; State Tax on Foreign Bonds, 15 Wall. 320; Renier v. Hurlbut, 50 N. W. Rep. 783; Wallace v. McConnell, 13 Pet. 136; Railroad, v. Gomila, 132 U. S. 485; Bank v. Rollen, 99 Mass. 313; Trowbridge v. Means, 5 Ark. 135. It has been ruled in effect that a debt without reference to where payable is deemed attached to the person of the owner so as to have its situs at his domicile, yet this fiction always yields to laws for attaching the property of a non-resident because such laws necessarily assume that the property has -a situs distinct from the owner’s domicile. Wherever the creditor might maintain a suit to recover the debt there it may be attached as his property, provided the laws of such place authorize it. Harvey v. Railroad, 52 N. W. Rep. (Minn.) 905; Nichols v. Hooper, 17 Atl. Rep. (Vt.) 134; Railroad v.
According to the rulings in the cases just cited, it would seem quite obvious that the Kansas court had the requisite jurisdiction to impound the plaintiff’s credits there by the attachment proceedings. And 'this doctrine seems just and reasonable, for, if the defendant cannot reach the plaintiff’s credits by the attachment process in Kansas because they have a situs in this state, he cannot reach them in this state, because there can be no service of notice had on the garnishees in this state, so that it results that plaintiff’s credits cannot be attached at all.
But we are confronted with contrary rulings of the St. Louis court of appeals to the effect that the situs of the debt is the place where the debtor resides, unless the debt by the terms of the contract is made payable elsewhere, and in the latter event such situs is at the place ivhere the debt is payable. Keeting v. Refrigerator Co., 32 Mo. App. 293; Bank v. Wickham, 23 Mo. App. 663; Fielder v. Jessup, 24 Mo. App. 91. And to the exception to the rule as indicated by the italicised words thereof, we cannot agree for the reasons already stated. We think the rule declared in Harvey v. Railroad and the other cases cited which are in accord with it will better subserve interstate trade and business relations than that embraced in the foregoing exception.
It does not appear that the plaintiff did not acquire knowledge of the pendency of the attachment suit in time to have made its proper defense in the courts of Kansas. Nor does it appear that full and complete justice would not have been done to all the parties in the Kansas courts had they appeared and litigated the
Concurrence Opinion
(concurring). — In concurring in the foregoing opinion I have some fear that an interpretation too narrow may be given to the' exception mentioned to the rule stated that a debt has no situs. There are other exceptions besides in attachment; as,