McBee v. Purcell National Bank

Lewis, J. (after stating the facts.) The deposit of money by appellant in the bank raised between them the relation of debtor and creditor. The first question presented by this record is as to the situs of the debt thus created. If such situs was within the territorial limits of the commissioner’s court, such court, by the proceeding in garnishment, inquired jurisdiction. If such situs was elsewhere, the com-nissioner’s court did not acquire jurisdiction, arid the judg-nent therein pleaded by appellee is a nullity, and payment hereon creates no defense in this action. The endeavor to ix in cases like the present the situs of a debt due by a •esident of one jurisdiction to the resident of another has )een fruitful of controversy and of differences of judicial jpinion. The weight of authority favors the view that for rurposes of attachment, as well as for many other purposes, — 292 — a debt has its situs at the residence of the owner* the credit- or; that his state has exclusive jurisdiction over the debt; and that, therefore, no other state has the power to attach it. It is because thé debt is beyond the jurisdiction of such other state that it is exempt from attachment; and therefore the fact that the debtor is found in the state of process, and the debt garnished in his hanjls at the suit of a person having a demand against the nonresident creditor, does not render the debt liable to attachment, for the debt does not follow the person of'the debtor, and is still situated without the jurisdiction of the attaching court at the residence of the creditor. See Reno, Nonres. § 138, and the authorities therein cited. The opinions by Mr. Justice Valentine in the case of Railway Co. vs Sharitt, 43 Kan. 375, 387, 23 Pac. 430, and of Judge Clark in the case of Central Trust Co. vs Chattanooga, R. & C. R. Co., 68 Fed. 685, are each able presentations of the arguments in support of this view, and are exhaustive in their review of the cases bearing upon the question. The contrary view is announced in the cases of Moore vs Railway Co., 43 Iowa, 385, and of Railway Co. vs Barnhill, 91 Term. 395, 19 S. W. 21, and the authorities in support thereof are very thoroughly reviewed in the dissenting opinion of Chief Justice Horton in the case of Railway Co. vs Sharitt, supra. We think that, to the rule as above stated, there must be recognized an exception in the case of a debtor residing in the state of process, and whose debt is, either by contract or by implication of law, payable therein. A debt is an intangible thing, and, in strictness of speech, is incapable of having a situs at all. The determination of jurisdictional questions has compelled the courts to ascribe to it a local habitation. The legal title and right to the debt being in the creditor, pj analogy to the principle that constructive possession is with the rightful owner, the situs of the debt, as we have seen by probably a majority of the courts, is held to — 293 — be the residence of tbe creditor. But situs founded upon these considerations, being purely constructive, should yield to the fact of payment of the debt or performance of the contract stipulated or legally implied, to be made elsewhere than at the residence of the owner, just as constructive possession, based upon title and ownership, is not indulged against actual possession proven in another. Thus, it is said in the opinion of Mr. Justice Valentine in the case of Railway Co. vs Sharitt, supra: “It is the creditor that owns the debt, and not the debtor; and the situs of the debt must be considered as being either with the owner, or at his residence, or where it is to be paid. Indeed, the more natural situs of any contract, whether a debt or not, would seem to be where it is to be performed.” In Railway Co. vs Maggard (Colo. App.) 39 Pac. 985, it is stated: “But, between the plaintiff and defendant, the debt, beyond question, followed the domicile of the plaintiff. That was its situs. But the indebtedness- of the garnishee to the defendant did not follow the plaintiff. Its situs was, by contract, fixed where the services were to be performed and the payment to be made.” In Railway Co. vs Dooley, 78 Ala. 524, it is said: “The situs of a debt, in the absence of stipulation to the contrary, is the domicile of the creditor.” The exception for which we contend is expressly recognized in Renier vs Hurlbut, 81 Wis. 24, 50 N. W. 783. In Missouri, not only is the place of payment recognized as the situs of the debt, but it is held that in all cases where the debtor resides in the state, and the debt is not by the terms of the contract payable elsewhere, he becomes chargeable as garnishee, and the court acquires jurisdiction to condemn the debt. Green’s Bank vs Wickham, 23 Mo. App. 663; Walker vs N. K. Fairbanks & Co., 55 Mo. App. 478. Considerations of policy support the exception. The states of this Union are frequently separated by invisible lines, but they are'united by closest ties of business inter — 294 — course. It would be an unfortunate condition if unwilling debtors could simply cross tbe lines of their respective states, deposit their funds in nearby banks, and thereby place them entirely beyond the reach of legal process. It was proven in this case that the fund in controversy, deposited by appellant in the appellee’s bank, was payable at the counter of the bank in Purcell, and was therefore payable in the territorial jurisdiction of the commissioner’s court, wherein the appellee was a resident. It might have been held as a rule of law, apart from proof, that money deposited in a bank, without stipulation as to place of payment, is payable to the. depositor at the bank. “The legal relation of banker and depositor, upon a general deposit, is, in most respects, that of debtor and creditor. By' the deposit, the latter parts with, and the former acquires, the title to the specific money deposited, and the one becomes indebted to the other in the amount of the sum deposited. But, by universal understanding on the part of bankers and depositors, there is a condition attached to the undertaking of the bank. It is not its duty, as it is that of an ordinary debtor, to seek the creditor and pay him wherever found. It does not undertake to pay without respect to place, — to pay absolutely and immediately; but its engagement is to pay at its banking house when payment shall be called for there. Everybody understands that to be what it assumes to do. Banks of deposit could not be conducted in any other way.’’ Branch vs Dawson, 33 Minn. 399, 23 N. W. 552; Watson vs Bank, 8 Metc. (Mass.) 217; Girard Bank vs Bank of Penn Tp., 39 Pa. St. 92; Downes vs Bank, 6 Hill 297; 1 Morse, Banks, § 310. Garnishment -Situs oí d ebt —Deposit in hank. The court did not err in finding that the garnishment proceeding was an action in rem, that the debt was payable at the bank, and that the commissioner’s court had jurisdiction. Cooper vs Reynolds, 10 Wall. 308. 2. The court did not err in its second conclusion of — 295 — law, that the judgment in the original suit, wherein Dean was plaintiff and McBee was defendant, was only voidable, and not subject to collateral attack in this suit. It is an axiom of the law that, when a judgment of a court is offered in evidence collaterally in another suit, its validity cannot be questioned for errors that do not affect the jurisdiction of the court that rendered it. Cooper vs Reynolds, supra. We have already held that the commissioner’s court had jurisdiction. This statement disposes also of the tenth assignment of error (if the record made its disposition necessary,) wherein complaint is made of the action of the court in excluding testimony tending to impeach the judgment of the commissioner’s court in the garnishment proceeding. Judgment-Collateral attack. Bill of Exceptions — Evidence-Pre-sumption to support verdict. 3. We have considered the questions heretofore discussed as they arise upon the court’s findings of fact and conclusions of law. Various errors are assigned predicated upon the rulings of the trial court in the admission of testimony. Some of the objections to the evidence admitted are, as the record is presented to us, well taken. The bill of exceptions contains some of the evidence, but it does not show that it contains all the testimony adduced at the trial. In the absence of such showing, we cannot know that errors in admitting testimony were not cured by the introduction of other testimony, which made that objected to competent, or which rendered its admission harmless by establishing the facts sought to be established by the incompetent testimony. In McKinney vs Demby, 44 Ark. 76, the Supreme Court of Arkansas, upon the question that the court’s instruction was not supported by evidence, announced the rule as follows: “This objection fails, because we must presume that there was such testimony, or else the instruction would not have been given. In the absence of a showing that there was no other testimony heard at the trial, every intendment is indulged in favor of the action of the trial court; and this court will presume that every fact susceptible of proof that — 296 — could have aided appellee’s case was fully established. The statutory rule of law is that every judgment of a court of competent jurisdiction is presumed to be right unless the party aggrieved will make it affirmatively appear that it is erroneous.” See, also, Dean vs State, 37 Ark. 57, and Woodruff vs McDonald, 33 Ark. 97. The principle that will presume the existence of evidence to support the court’s charge must also presume the existence of evidence to render testimony admitted competent, in the absence of a showing to the contrary in the record. Such a rule is wholesome, and is followed in other states. Dull vs Drake, 68 Tex. 205, 4 S. W. 364; Rains vs Herring, 68 Tex. 468, 5 S. W. 369. Bin of excep-ttons — Sufficten°yUnder the rule of this court, it is not necessary to bring up all the evidence introduced at the trial to secure a review of the court’s action in the admission of particular matters of testimony. It is sufficient to bring up such a statement as will clearly present to this court the very point involved. To do this, it must appear from the bill of exceptions that no other evidence bearing upon the question was introduced than.that shown therein. ' . The record not containing reversible error, the judgment is affirmed. Springer, C. J., concurs.