Opinion
No. 34670.
September 22, 1941.
1. CORPORATIONS.
A foreign corporation which has become domesticated in Mississippi is subject to attachment under statute respecting attachment suits in chancery (Code 1930, sec. 173).
2. GARNISHMENT.
In an attachment suit in chancery, the resident defendant alleged to have property in his hands belonging to nonresident defendant is not a "garnishee" in technical and procedural sense of a garnishee in an attachment at law, and no writ of garnishment should be issued to him, and he is simply a defendant with all rights and privileges as such and should merely be summoned to answer the suit as any other defendant is summoned (Code 1930, secs. 173, 372).
3. APPEAL AND ERROR. Equity.
Where resident defendant who was alleged to have property belonging to nonresident defendants appeared and answered bill in attachment suit in chancery, the effect of service of a writ of garnishment on such defendant was not before Supreme Court on defendants' appeal, and fact that resident defendant was not referred to as a defendant in bill was of no consequence (Code 1930, secs. 173, 372).
4. VENUE.
Where attachment suit in chancery was commenced in Prentiss county, in which county codefendant, who was alleged to have property belonging to nonresident defendants, resided, and codefendant's presence was necessary to enable complainant to proceed with suit and to realize on any decree in complainant's favor, codefendant was a "necessary party" to suit within statute providing that suits in chancery may be brought in any county where defendant or any necessary party defendant resides, and hence suit could be maintained in Prentiss county, although no other defendant resided therein (Code 1930, secs. 173, 363).
APPEAL from the chancery court of Prentiss county, HON. JAS. A. FINLEY, Chancellor.
Thomas E. Pegram, of Ripley, and Armstrong, McCadden, Allen, Braden Goodman, all of Memphis, Tennessee, for appellant.
Section 4163 of the Code of 1930 provides that the venue of actions against domesticated foreign corporations is the same as suits against domestic corporations; and the law provides that a domestic corporation must be sued in the county of its domicile or in the county where the right of action accrued. This Court has, therefore held in Sanford v. Dixie Construction Company, 128 So. 888, that the venue of transitory actions (such as the case at bar) against domesticated foreign corporations is either in the county of such corporation's resident agent or in the county where the right of action accrued.
Notwithstanding the fact that the appellee seems to rely, for her jurisdiction in Prentiss County, on the fact that W.L. Gullett is a resident of that County, she, nonetheless, fails to make him a defendant in the case as is provided by Section 372 of the Code of 1930 which distinctly specified that the names and residences of all of the parties must be stated in the introduction of a bill or petition. It is true that at a place near the close of the bill Gullett is called a garnishee, but Section 174 of the Code of 1930 provides that Gullett should have been made a defendant just as other defendants. We submit that attachments, under Section 173 of the Code of 1930, against domesticated foreign corporations, such as the Gulf Refining Company, which has an immense business all over Mississippi, is a harsh and in realty an unfair statute as to such corporations; and, therefore, when a party files a suit against such corporation in a county where neither of the defendants reside, where the resident agent does not reside, and where the right of action did not accrue such a complainant should follow the letter of the statute in her bill; and, not having done so, we submit that the Chancery Court of Prentiss County had neither venue jurisdiction or jurisdiction of the subject matter; and, that the motion to dismiss should have been sustained.
If we are in error that the motion to dismiss should have been sustained for want of jurisdiction as to the subject matter, we earnestly insist that our objection to the jurisdiction of that Court was in such form that it did entitle us to a transfer of the case to the Chancery Court of Tippah County. Chapter 233 of the Laws of Mississippi, 1940, brought about a radical change. Theretofore, if a domestic corporation or a domesticated foreign corporation were sued in a county other than its domicile (or other than the county of the resident agent in case of a domesticated foreign corporation) and other than the county where the right of action accrued then the suit had to be dismissed.
When the writer of this brief was employed in this case, his preliminary investigation lead him to think that, under certain decisions, this Court would perhaps hold that a domesticated foreign corporation was in the nature of a domestic corporation and could not be attached in Chancery under Section 173 of the Code of 1930, for the Court had said, in Alabama Power Company v. Jackson, 181 Miss. 691, where the Alabama Power Company was a domesticated foreign corporation, "we assume that the Alabama Power Company is a domestic corporation," but in a later investigation we ran across the case of Southern Motor Express Company v. Magee Truck Lines, Inc., 181 Miss. 223, and the logic of that decision is unanswerable so far as we are concerned.
We submit that the case at bar serves as a fair illustration that, under Section 173 of the Code of 1930, fortified with the Southern Motor Express Company case, supra, the rights of a domesticated foreign corporation may be abused as to venue jurisdiction.
An unusually sound pronouncement, in discussing Section 173 of the Code of 1930 is found in the case of Delta Ins. Realty Co. v. Interstate Fire Insurance Co., 113 Miss. 542.
See dissenting opinion in Clark v. L. N.R. Company, 158 Miss. 287.
James A. Cunningham and James A. Cunningham, Jr., both of Booneville, for appellee.
By saying that while they quote from a dissenting opinion of Justice Griffith in Clark v. L. N. Railroad Company, 158 Miss. 287, 130 So. 302, they wholly ignore the majority of opinion in that case which settled the law of this state more than a decade of years back and which has been followed since not only by this Court but by the nisi prius Courts of the State. It was a reannouncement of the law as it has stood for quite a hundred years. The proposition of setting up a new rule applying to foreign corporations which have domesticated in this state is by their own brief admitted to be in direct conflict with the established law of this state as thoroughly adjudicated by this Court in Southern Motor Express Company v. Magee Truck Lines, Inc., 181 Miss. 223, 177 So. 653, which thoroughly adjudicated the fact that the domestication of a foreign corporation in Mississippi had no such effect as to take from it its identity as a foreign corporation for suit by attachment in Chancery.
Thus it is clear that in order to induce this Court to reverse the learned Chancellor below they feel that you should ignore or overrule both Clark v. L. N. Railroad Company et al., and Southern Motor Express Company v. Magee Truck Lines, both cited above.
Learned counsel undertakes to claim and does contend in his brief that the statutes, Sections 173 and 174, Code 1930, as heretofore construed, are "unfair" and that this "would be a good opportunity for this Court" to change the current of affairs which would be to set up a new system of Rules (and apparently for the comfort and convenience of this case).
Learned counsel overlooked the fact that the statute itself (Sec. 173, Code 1930) provides that the action "may be had against any such debtor and against persons in the state who have in their hands effects of, or are indebted to, such nonresident."
Learned counsel have certainly overlooked that this is primarly a suit in rem and that the property in the hands of the garnishee defendant was located in Prentiss County, Mississippi.
We also cite Bean v. Bronon, 104 So. 173, 139 Miss. 312; and Pan-American Petroleum Corporation v. Page, 126 So. 480, 157 Miss. 822.
This is an attachment in chancery by the appellee against the appellants begun by the appellee in the Chancery Court of Prentiss County. The bill of complaint alleges that the Gulf Refining Company is a foreign corporation, domesticated in this State under the statutes so providing, and that Fred Merritt and Vardaman Tapp, its employees, inflicted damage on the complainant while in the discharge of their duties to the Gulf Refining Company in Tippah County, Mississippi, where the complainant, Merritt and Tapp all reside. The bill of complaint was filed in Prentiss County, Mississippi, and Merritt, Tapp and the Gulf Refining Company for defendants thereto, as is also W.L. Gullett, who resides in Prentiss County, and is alleged to have in his possession and under his control property belonging to the Gulf Refining Company. Gullett appeared and admitted having property of the Gulf Refining Company in his possession. The other defendants to the bill appeared specially, and requested the court to dismiss the bill for want of jurisdiction, but should it decline to do so, then to change the venue of the case to either Tippah County, Mississippi, where the right of action accrued, or to Hinds County, Mississippi, where the Gulf Refining Company has a resident agent. Both requests were denied, and an appeal was granted to settle the principles of the case.
The request for the dismissal of the case is based on the contention that a foreign corporation which has become domesticated in this State is not subject to attachment under Section 173 of the Code of 1930, but this Court held the contrary in Southern Motor Express Company v. Magee Truck Lines, Inc., 181 Miss. 223, 177 So. 653, 114 A.L.R. 1377.
In support of their request that the venue of the case be transferred to either Tippah or Hinds County, the appellants say that Gullett was not made defendant to the suit in the manner required by Section 372 of the Code, that he is not referred to therein as a defendant, but simply as a garnishee, and the process prayed for him is "a writ of garnishment . . . in the form and manner required by law;" and the argument seems to be that the venue in an attachment and garnishment proceeding is not controlled or affected by the residence of the garnishee. This may be true in an attachment at law, but in an attachment in chancery under Section 173, the resident defendant alleged to have property in his hands belonging to the non-resident defendant is not a garnishee in the technical and procedural sense of a garnishee in an attachment at law, and no writ of garnishment should be issued to him. He is simply a defendant with all the rights and privileges as such and should simply be summoned to answer the suit as any other defendant is summoned. Inman v. Travelers' Ins. Company, 153 Miss. 405, 121 So. 107; Craig v. Gaddis, 171 Miss. 379, 157 So. 684, 95 A.L.R. 1494. What the effect of a writ of garnishment served on Gullett would have been is not before us for he appeared and answered the bill of complaint, and the fact that he is not referred to as a defendant therein becomes of no consequence.
The appellants seemed further to say that Gullett is not a necessary party to this suit, and therefore is not within the provision of Section 363, that suits in chancery may be brought in any county where the defendant or any necessary party-defendant may reside. Gullett's presence is absolutely necessary to enable the complainant to proceed with her suit and to realize on any decree against it in her favor.
Affirmed and remanded.