Opinion
No. 35357.
May 3, 1943. Suggestion of Error Overruled May 31, 1943.
1. PARTNERSHIP.
An attachment in chancery would not lie to reach the interest of two nonresident partners in partnership deposit in bank where effect of attachment was to withdraw from third partner, who was a resident of the state, the use and control of his interest in the deposit until termination of the litigation (Code 1930, sec. 173).
2. PARTNERSHIP.
Where it would be necessary, in order to ascertain interest of two nonresident partners in bank deposit of partnership consisting of the two nonresident partners and a resident partner, for trial court practically to wind up partnership and distribute its assets, an attachment in chancery would not lie to reach the interest of the two nonresident partners (Code 1930, sec. 173).
3. GARNISHMENT.
Where attachment in chancery was subject to dismissal but without the attachment a claim for damages for injury remained for trial against two persons on whom process was served, motion to dismiss bill, as distinguished from motion to dismiss attachment, was properly overruled (Code 1930, sec. 173).
APPEAL from chancery court of Panola county, HON. L.A. SMITH, SR., Chancellor.
Herbert Holmes, of Senatobia, and Watkins Eager, of Jackson, for appellants.
The appellants take the position that it affirmatively appears that the chancery court of the First Judicial District of Panola County, Mississippi, has no jurisdiction over this cause. The appellee, complainant, attempts to obtain jurisdiction in the chancery court solely by virtue of the provisions of Sections 173-178 of the Mississippi Code of 1930, which are referred to as Attachments in Chancery. Section 173 provides that the chancery court shall have jurisdiction of attachments in suits based upon demands arising ex delicto" . . . against any nonresident, absent or absconding debtor, who has lands and tenements within this state, or against any such debtor and persons in this state who have in their hands effects of or are indebted to, such non-resident, absent or absconding debtor."
The question which immediately arises is whether the indebtedness from the Bank of Sardis to the partnership, S. W. Construction Company and Charles Weaver, is an indebtedness to a "non-resident, absent or absconding debtor." Appellee does not contend that the partnership or the members thereof are absent or absconding. It affirmatively appears that Charles Weaver is an adult resident citizen of Hinds County, Mississippi, and service of process was obtained on him personally in Jackson, Mississippi. Personal service was obtained on C.J. Wagner in Panola County, Mississippi.
The question to be determined is whether the fact that two members of the partnership, E.E. Schmied and C.J. Wagner, are nonresidents of the State of Mississippi renders an indebtedness due the partnership by a Mississippi bank an indebtedness to a nonresident. We submit that all of the authorities answer this question in the negative.
Blair et ux. v. Frank B. Russell Co., 120 Miss. 108, 81 So. 785; Barney v. Moore-Haggerty Lumber Co., 95 Miss. 118, 48 So. 232; Dinwiddie v. Glass et al., 111 Miss. 449, 71 So. 745; 7 C.J.S. 217; 47 C.J. 978.
It should be noted that under Section 121 of the Mississippi Code of 1930 it is provided that partnership property may be reached by attachment on any of the enumerated grounds therefor "save the first." The first enumerated ground is that of a nonresident of the state. In other words, the legislature specifically recognized the common law rule that the partnership property could not be subjected to attachment with nonresidence as the basis for the attachment unless all of the persons are nonresidents of the state.
Barney et al. v. Moore-Haggerty Lumber Co., supra.
The court erred in concluding that this partnership property could be attached as though it were the individual property of the nonresidents of the partnership. Prior to the dissolution of any partnership, the firm assets belong not to the individuals comprising the partnership but to the partnership as such. The partners, as individuals, do not have any specific interest in any particular asset of the partnership.
47 C.J. 781.
It is perfectly apparent, therefore, that the attempted attachment or garnishment against the funds in the hands of the Bank of Sardis constitutes an attempt to attach or garnish the funds of a partnership, one member of which admittedly is a resident of this state. The grounds for chancery attachment, therefore, wholly fails and the chancery court is without jurisdiction.
It should be noted that the bill of complaint does not attempt to obtain equity jurisdiction on any ground other than an alleged indebtedness due an alleged nonresident debtor under the chancery attachment provisions of the Code. These provisions are in derogation of the common law and appellants' common law right to trial by jury and should be strictly construed.
City of Jackson v. Wallace, 189 Miss. 252, 196 So. 223; Potter v. Fidelity Deposit Co. of Maryland, 101 Miss. 823, 58 So. 713.
Where the Constitution, either state or federal, preserves the right of trial by jury, the court of last resort usually construes strictly any statute which tends to deprive the parties of their constitutional right of trial by jury.
Scott v. Neely, 140 U.S. 106, 35 L.Ed. 358.
It should be noted that if complainant is correct in the position taken that the nonresidence of any member of a partnership subjects the partnership property to chancery attachment regardless of the number of members of the partnership who reside in Mississippi, it readily appears that absurd results would be reached and the "nonresident defendant" required by the statute would be a legal fiction. Such a holding finds support, we submit, in neither reason nor authority.
James McClure, of Sardis, and Stovall Lowrey, of Clarksdale, for appellee.
A nonresident's interest in a partnership bank deposit can be attached in chancery, although one of the partners is a resident of the State of Mississippi.
Dinwiddie v. Glass, 111 Miss. 449, 71 So. 745; Aetna Ins. Co. v. Robertson, 126 Miss. 387, 88 So. 883; Code of 1930, Secs. 173, 3020; 47 C.J. 781, par. 221; 47 C.J. 980, par. 514; 47 C.J. 978, par. 509; 7 C.J.S. 261, par. 90-B; 40 Am. Jur. 447, par. 455; 4 Am. Jur. 629, par. 119; 4 Am. Jur. 764, par. 335.
Even if it be held that the lower court erroneously assumed jurisdiction of the cause, nevertheless, this court is powerless, under the provisions of Section 147 of the Mississippi Constitution, to interfere or reverse.
Lee v. Lee, 135 Miss. 865, 101 So. 345; Carter v. Witherspoon, 156 Miss. 597, 126 So. 388; Cazeneuve v. Curell, 70 Miss. 521, 13 So. 32; Day v. Hartman, 74 Miss. 489, 21 So. 302; Irion v. Cole, 78 Miss. 132, 28 So. 803; White v. Willis, 111 Miss. 417, 71 So. 737; Mississippi Constitution, Sec. 147.
Even if it be held that the lower court erroneously assumed jurisdiction of the cause, nevertheless, it was powerless to dismiss the cause under the provisions of Section 162 of the Mississippi Constitution, and correctly overruled the motion to dismiss, since the defendants failed to request a transfer of the cause to the circuit court.
Murphy v. Meridian, 103 Miss. 110, 60 So. 48; Layne Central Co. v. Gulf Coast Ice Co. et al., 171 Miss. 94, 157 So. 84; Eagle Lumber Co. v. Peyton, 145 Miss. 482, 111 So. 141; Mississippi Constitution, Sec. 162.
Argued orally by Herbert Holmes and Thomas H. Watkins, for appellants, and by James McClure, for appellee.
This is an attachment in chancery under Section 173, Code of 1930, which the Reporter will set out. The bill of complaint was filed by the appellee against E.E. Schmied, C.J. Wagner, Charles Weaver and the Bank of Sardis, and alleges in substance that he was employed by Schmied, Wagner and Weaver, and while engaged about their business was injured by their negligence in Panola County. Schmied and Wagner are nonresidents, but Weaver is a resident citizen, of Mississippi. The Bank of Sardis is indebted to them for money deposited by them with it. The prayer of the bill is for a judgment against Schmied, Wagner and Weaver for the damages sustained by the appellee because of his injury, and that the interest of Schmied and Wagner in the debt of the bank to Schmied, Wagner and Weaver be applied to the payment thereof. Process was served personally on Wagner, Weaver and the bank. A motion was filed by the defendants to dismiss the bill of complaint on the ground that it did not present a case for an attachment under the statute. It appears from an agreed statement filed in the court below that Schmied, Wagner and Weaver are "engaged as partners in the construction" work about which the appellee was injured. The motion was overruled and this appeal was granted to save expense and delay, and to settle the principles of the case. The appellee's motion to dismiss the appeal will be overruled and the questions presented by it, decided, in accordance with Dinwiddie v. Glass, 111 Miss. 449, 71 So. 745; and National City Bank v. Stupp Bros., 147 Miss. 747, 113 So. 340.
"The chancery court shall have jurisdiction of attachment suits based upon demands founded upon any indebtedness, whether the same be legal or equitable, or for the recovery of damages for the breach of any contract, express or implied, or arising ex delicto against any non-resident, abent or absconding debtor, who has lands and tenements within this state, or against any such debtor and persons in this state who have in their hands effects of, or are indebted to, such non-resident, absent or absconding debtor. The court shall give a decree in personam against such non-resident, absent or absconding debtor if summons has personally served upon him, or if he has entered an appearance."
The case presented by the record does not come within the attachment provision of Section 173, Code of 1930, for two reasons:
1. The appellee admits that an attachment would not here lie to reach the interest of Weaver, the resident defendant, in the debt due by the Bank of Sardis to this partnership, but points out that he is not attempting to reach that interest but only the interest of his nonresident partners in this debt. That is true, but in order to accomplish this purpose, he has, by his attachment, as effectually withdrawn from the resident defendant the use and control of his interest in this debt due his partnership until the termination of this litigation as would have resulted from the inclusion of that interest in the prayer of the appellee's bill. That interest has been, in effect, attached or impounded for the duration of this lawsuit, and so to do is clearly beyond the scope and purpose of the statute. Cf. Dinwiddie v. Glass, supra.
2. Moreover, in order to ascertain what the interest of these nonresident partners, if any, in this debt is, it would be necessary for the court below to practically wind up the partnership and distribute its assets, for the doing of which Section 173 of the Code makes no provision and consequently the court below was without authority so to do. Cf. Williams v. Gage, 49 Miss. 777; Fewell v. American Surety Co., 80 Miss. 782, 28 So. 755, 92 Am. St. Rep. 625.
The appellant's motion, however, was not to dismiss this attachment but to dismiss the bill of complaint, and consequently the court below committed no error in overruling it, for without the attachment, the appellee's claim for damages for his injury remains for trial against the two members of this partnership on whom process was served. Ford v. Mutual Life Ins. Co., 194 Miss. 519, 13 So.2d 45. What we have said as to the attachment will guide the court below on the return of the case thereto.
Affirmed and remanded.