Summary
In Smith v. Doehler Metal Furniture Co., 195 Miss. 538, 15 So.2d 421 (1943), Mississippi Southern College was joined as a party defendant in a suit to recover a debt.
Summary of this case from Jagnandan v. GilesOpinion
No. 35414.
November 8, 1943.
1. STATES.
An arm or agency of the state is not subject to suit, including suits under attachment in chancery statute, except by express statutory or constitutional authority (Code 1930, sec. 173 et seq.).
2. STATES.
Mississippi Southern College, being an arm or agency of state, was not subject to attachment in chancery in action to recover money allegedly owing plaintiff by nonresident corporations to which college was indebted (Code 1930, sec. 173 et seq.).
3. COLLEGES AND UNIVERSITIES.
If Mississippi Southern College, recognizing justness of third person's claim against nonresident corporations to which college is indebted, with approval of board of trustees, pays such claim and deducts amount from balance due corporations, there will be no jurisdiction in the courts to review such action.
4. ATTACHMENT. Colleges and Universities.
Fees paid by students at Mississippi Southern College were paid for services to be rendered and facilities to be furnished by college, and, when paid, became the property of the college or public funds which were not subject to attachment in chancery (Code 1930, sec. 173 et seq.).
5. GARNISHMENT.
Bill in chancery to collect money due plaintiff from nonresident corporations not doing business in the state, by attaching funds of state college which was indebted to the corporations could not be maintained against the corporations after dismissal of suit as to college and its officers (Code 1930, sec. 173 et seq.).
APPEAL from chancery court of Forrest county, HON. BEN STEVENS, Chancellor.
Heidelberg Roberts, of Hattiesburg, for appellant.
As we view it, the Attorney General was and is an unnecessary and improper volunteer in this cause. His pleadings should have been stricken from the files and held for naught. The judgment entered at this request is void and ineffectual.
Woodbury et al. v. McClurg, Attorney General, 78 Miss. 831, 29 So. 514; Board of Supervisors of Lauderdale County v. Guaranty Loan, Trust Banking Co. et al., 117 Miss. 132, 77 So. 955; Code of 1930, Secs. 3665, 3670; Code of 1930, Ch. 81; Laws of 1934, Ch. 150.
All of the moneys in question here were collected from students and the money is carried in the bank in an account identified as "Mississippi Southern College Student Fund." None of the money is state appropriated.
The money is not public money, but is private money, and it is subject to garnishment or attachment.
Petition of Clerk for instructions respecting canceled bank checks, 261 F. 154; City of Seattle v. Stirrat, 104 P. 834, 24 L.R.A. (N.S.) 1275; Ayres v. Lawrence, 59 N.Y. 192, 196; Code of 1930, Sec. 173; 50 C.J. 854, par. 40; 22 R.C.L. 222; 36 L.R.A. 292; 6 Words Phrases 5788, first series.
The funds here involved are subject to be reached in a court of equity.
Ayres et al. v. Board of Trustees of Leake County Agricultural High School, 134 Miss. 363, 98 So. 847; Thomas v. Price, 171 Miss. 450, 158 So. 206; Code of 1930, Sec. 173; Code of 1930, Sec. 1838 as amended by Ch. 321, Laws of 1936.
If we are mistaken in our view that the college is made a party defendant under said Section 173 of the Code of 1930, still we would have before us the question of its being private funds and not public funds and Dr. George and Mr. Hays being custodians of student monies. There is not that public character to the money or to the two individuals and their handling thereof to preclude their being named garnishee defendants and to bind in their hands moneys held by them and belonging to nonresident private corporate defendants and against which a lien exists in favor of appellant.
The May Department Stores Company and the Doehler Metal Furniture Company, Incorporated, were doing business under the terms and provisions of Chapter 246 of the Laws of 1940.
Central Western Development Co., Ltd., of London, England, v. Lewis, 142 Miss. 428, 107 So. 557.
The two private corporate defendants entered their appearance and the court has jurisdiction over them.
Alabama Power Co. et al. v. Jackson, 181 Miss. 691, 179 So. 571; Cudahy Packing Co. v. Smith, 191 Miss. 31, 2 So.2d 347; McCoy v. Watson, 154 Miss. 307, 122 So. 368; Arnett v. Smith, 165 Miss. 53, 145 So. 638; Gridley, Maxon Co., Inc., v. Turner, 179 Miss. 890, 177 So. 362; First National Bank of St. Louis v. Mississippi Cottonseed Products Co., 171 Miss. 282, 157 So. 349; Batson Hatten Lumber Co. v. McDowell, 159 Miss. 322, 131 So. 880; State v. State Highway Commission et al. (Miss.), 13 So.2d 614; Code of 1930, Sec. 2999; Laws of 1940, Ch. 233.
The two private corporate defendants were found doing business in Mississippi under Section 4166 of the Code of 1930 and under Chapter 246 of the Laws of 1940 and under general law with appearance they are subject to suit in Mississippi.
McCoy v. Watson, supra; Harleston v. West Louisiana Bank, 129 Miss. 111, 91 So. 423; Quartette Music Co. v. Haygood, 108 Miss. 755, 67 So. 211; Bohn v. Lowry, 77 Miss. 424, 27 So. 604; Wiley Electric Co. v. Electric Storage Battery Co., 167 Miss. 842, 147 So. 773; Cooper Mfg. Co. v. Ferguson, 28 L.Ed. 1137.
Article 2, Chapter 7, Code of 1930, does not immunize state institutions from attachments in chancery.
Greek L. Rice, Attorney-General, by Jefferson Davis and Geo. H. Etheridge, Assistant Attorneys-General, for appellees.
Mississippi Southern College is a state institution, an arm of the state.
Coleman v. Whipple, 191 Miss. 287, 2 So.2d 566; Code of 1930, Secs. 7227, 7228, 7229; Code of 1930, Art. 6, Ch. 173; Laws of 1910, Ch. 119; Laws of 1932, Ch. 127.
State institutions are not subject to attachment in chancery under the provisions of Article 2, Chapter 7, Code of 1930.
Ayres v. Board of Trustees of Leake County Agricultural High School, 134 Miss. 363, 98 So. 847; Mississippi Centennial Exposition Co. v. Luderbach, 123 Miss. 828, 86 So. 517; State Highway Commission v. Gulley, 167 Miss. 631, 145 So. 351; Gulf Export Co. v. State, 112 Miss. 452, 73 So. 281; Gully, State Tax Collector, v. Stewart, 178 Miss. 758, 174 So. 559; Howell v. Kersh, 152 Miss. 266, 119 So. 186; Dollar v. Allen-West Commission Co., 78 Miss. 274, 28 So. 876; McBain v. Rodgers (Miss.), 29 So. 91; Dollman v. Moore, 70 Miss. 267, 12 So. 23; Potter v. Fidelity Deposit Co., 101 Miss. 823, 58 So. 713; Raymond v. State, 54 Miss. 562, 28 Am. Rep. 382; Mississippi Live Stock Sanitary Board v. Williams, 133 Miss. 98, 97 So. 523; State v. Woodruff, 170 Miss. 744, 150 So. 760; Clarksdale Compress Co. v. W.R. Caldwell Co., 80 Miss. 343, 31 So. 790; City of Natchez v. Craig, 191 Miss. 567, 3 So.2d 837; Coleman v. Whipple, supra.
The funds involved are public and not private funds.
Coleman v. Whipple, supra; Code of 1930, Secs. 7227, 7228; Laws of 1932, Ch. 127; Laws of 1940, Ch. 20.
Appellant raises for the first time on this appeal the question of the authority of the Attorney General to appear for and on behalf of these appellees in the court below. It is a long established rule in this state that a question not raised in the trial court will not be considered on appeal.
Adams et al. v. Board of Supervisors of Union County, 177 Miss. 403, 414, 170 So. 684.
Mississippi Southern College is not subject to garnishment or attachment in attachment proceedings against nonresidents in chancery.
City of Natchez v. Craig, 191 Miss. 567, 3 So.2d 837; Craig v. Barber Brothers Contracting Co., 190 Miss. 182, 199 So. 270.
Green Green and E.R. Holmes, Jr., all of Jackson, for appellees.
The suit of appellant brought in Forrest County was properly dismissed as to both of the nonresident corporations unless (1) the court has jurisdiction of Mississippi Southern College and hence of the indebtedness of the college to May Department Stores Company, or unless (2) the court has jurisdiction of the nonresident corporations under Chapter 246, Laws of 1940. In other words, if the court determines that the college is not subject to chancery attachment and that the indebtedness owing to May is not subject to be impounded, then the suit was properly dismissed as to the college. If the suit was properly dismissed as to the college, the attachment proceedings fail, and the court must then determine whether the chancery court acquired jurisdiction of the person of the nonresident defendant corporations by service of process on Walker Wood, Secretary of State, under said Chapter 246, Laws of 1940.
Insofar as Mississippi Southern College is concerned, the only question involved is whether the institution can be subjected to the chancery attachment proceedings under said Section 173. This question, together with the question of the right of the Attorney General to appear on behalf of the college, which latter question was not raised in the court below, is fully discussed in the Attorney General's brief in this case and is by us here adopted.
As to the nonresident corporate appellees, there are two questions involved: (1) Have defendants the right to appear specially for the sole purpose of filing a plea to the jurisdiction of the court, challenging it at the outset and have that question first determined? (2) Were defendants or either of them doing business in Mississippi within the meaning of Chapter 246, Laws of 1940?
The nonresident defendants had a right to appear specially for the purpose of pleading to the jurisdiction of the court without first answering fully and thereby submitting themselves to the jurisdiction of the court.
Finklea Brothers v. Powell, 189 Miss. 454, 198 So. 293; Lee v. Memphis Publishing Co., 195 Miss. 264, 14 So.2d 351; Alabama Power Co. et al. v. Jackson, 181 Miss. 691, 179 So. 571; Cudahy Packing Co. v. Smith, 191 Miss. 31, 2 So.2d 347; McCoy v. Watson, 154 Miss. 307, 122 So. 368; Arnett v. Smith, 165 Miss. 53, 145 So. 638; Goldey v. Morning News, 156 U.S. 518, 39 L.Ed. 517; North American Mortgage Co. v. Hudson et al., 176 Miss. 266, 168 So. 79.
Under the facts, neither of the nonresident corporate defendants have done any intrastate business in Mississippi nor have they performed any work or services intrastate in Mississippi, hence the court is without jurisdiction of them.
Lee v. Memphis Publishing Co., supra; Yellow Manufacturing Acceptance Corporation v. American Oil Co., 191 Miss. 757, 2 So.2d 834; Morrison et al. v. Guaranty Mortgage Trust Co., 191 Miss. 207, 199 So. 110; Watson et al. v. J.R. Watkins Co., 188 Miss. 435, 193 So. 913; Case v. Mills Novelty Co., 187 Miss. 673, 193 So. 625, 126 A.L.R. 1102; International Shoe Co. v. Lovejoy (Iowa), 101 A.L.R. 122; York Manufacturing Co. v. Colley, 247 U.S. 21, 62 L.Ed. 963; Mississippi Law Journal for May 1941, Volume 13, Number 4, pp. 548, 559.
If strictly construed, Chapter 246, Laws of 1940, is unconstitutional.
Russell Investment Corporation v. Russell, 182 Miss. 385, 182 So. 102; Lee v. Memphis Publishing Co., supra; State ex rel. Attorney General v. School Board of Quitman County, 181 Miss. 818, 18 So. 313; Morrison v. Guaranty Mortgage Trust Co., supra; Lee v. Smith, 189 Miss. 636, 198 So. 296; Tatum v. Wheeless, 180 Miss. 800, 178 So. 95; Wuchter v. Pizzutti, 57 A.L.R. 1230, 1239, 72 L.Ed. 446; Duggan v. Ogden, 82 A.L.R. 765, 768; State of Wisconsin ex rel. v. Davison, 96 A.L.R. 589; Williams v. Meredith, 115 A.L.R. 890; Jones v. Pebler, 125 A.L.R. 451; Hess v. Pawloski, 71 L.Ed. 1091; State of Washington ex rel. v. Superior Court, 89 A.L.R. 653, note at 658; Vaughn v. Love (Pa.), 107 A.L.R. 1336, at 1340; Elk River Coal Lumber Co. v. Funk (Iowa), 110 A.L.R. 1415; Gouner v. Missouri Valley Bridge Iron Co. (La.), 49 So. 657, 658; Old Wayne Mutual Life Association v. McDonough, 51 L.Ed. 345; 21 R.C.L. 1348; Restatement of the Law, Conflict of Laws, Secs. 174, 175, 179.
Appellee filed his bill in the chancery court of Forrest County, alleging that the appellees, Doehler Metal Furniture Company and Famous-Barr Company, nonresident corporations, were indebted to him in the sum of $1,500, and that the Mississippi Southern College, domiciled in said county, was indebted to the said nonresident corporations in a greater sum; and he made the college a party defendant to his bill, seeking to avail of Sections 173 et seq., Code 1930, which are the sections which provide a remedy by attachment in chancery.
The college, through the Attorney General, filed in limine a plea to the jurisdiction of the court, pointing out that the institution is an agency or arm of the state, and is not subject to suit except by express statutory allowance and that there is no statute allowing the Mississippi Southern College to be sued, and in support of this plea such cases as Ayres v. Board of Trustees, etc., 134 Miss. 363, 98 So. 847; Mississippi Centennial Exposition Co. v. Luderbach, 123 Miss. 828, 86 So. 517; State v. Woodruff, 170 Miss. 744, 150 So. 760, and many others, have been cited.
That an arm or agency of the state cannot be sued except by express statutory or constitutional authority has been too long and too well settled to be further debatable now, and this includes, of course, suits under the attachment in chancery statutes. An institution such as this college is entrusted only to men of high character, and they, in turn, are under the supervision of a state-wide board of trustees, selected from among the most reputable citizens of the state. The legislature has evidently considered that such men would be as sensitive to every financial obligation of the institution and as alert to preserve its financial integrity as would any court or jury, and that since the principal field of effort of such an agency is other than business, it should not have its energies diverted by standing attendance upon litigation.
If, therefore, as appellant asserts, the officers of the college recognize the justness of appellant's claim and would pay it in whole or in part, except for the interference of the Attorney General and the doubt as to their authority in the premises, let the doubt be dismissed in that if, with the approval of the board of trustees, the officers of the college make payment to the appellant in whole or in part and deduct the payment from the balance due appellee corporations, there will be no authority in the courts to review their action, and the corporations would be remitted to their recourse against appellant and without prejudice.
Appellant made the president of the college and its financial secretary parties defendant, and proved that the fund out of which appellant has sought to enforce payment is known as "Mississippi Southern College Student Fund," so shown on the books of the college and as deposited in bank. This money had been paid to the college as fees by students for the two or three preceding years; and it is urged by appellant that this fund so obtained is a private and not a public fund, — that the president and secretary hold the same as personal trustees, and not as public officers or employes.
The proof is further, to summarize it, that at stated periods during each college session the total expenses for the operation of the college for the session would be carefully estimated and against this there would be credited the appropriations made by the legislature, and by statutory authority the difference would be made up by proportionate assessments against each student which the student would pay as an incidental fee, and for the information of the trustees, the state auditor, and the legislature, this was carried on the books as stated. Looking through the form to the substance, these fees were paid by the students in return for services to be rendered, and for facilities to be furnished, to them by the college, and, when paid, the fees became the property of the college, public funds, as to which the officers were responsible solely to the college and to the trustees, and to no private person whomsoever. It is not suggested that the students who paid these fees had any sort of draw-back or contingent interest in any unexpended balance. This fund was not subject to an attachment, and the bill was properly dismissed both as to the college and its officers.
The nonresident corporations appeared specially and filed a plea to the jurisdiction on the ground that they were not, and had not been, doing business in this state, and that since no attachment suit could be brought against the college or its officers, no such suit in the absence of the college could be maintained against the nonresident corporations. This is a subject which has been so recently and so frequently examined and discussed that we say no further here than that in our opinion the bill was properly dismissed as to all the parties to it.
Affirmed.