Wilson v. Danforth

McCay, Judge. This Court, in 5 Georgia, 531, held in general terms, that a foreign corporation, owing a debt, was a debtor residing out of this State, and that an attachment would lie against it. And this was in accord with the current of decisions _ in the United States: See Drake on Attachments. The Code, section 3191, follows in this respect, in terms, the Act of 1799, under which this decision was made. The first ground of attachment is, “when the debtor resides out of this State.” If this were all, the decision in 5 Georgia, 531, would be conclusive. But it is contended that section 3213 of the Code qualifies the general provisions of 3191. The language of 3213 is: “Attachments may issue against in-corporations not incorporated by the laws of this State, who are transacting business within this State, under the same rules and regulations as are by the Code prescribed in relation to issuing attachments and garnishments in other cases.” At a first reading it might be supposed that it was the intent of the codifiers to provide as contended for; but after much reflection, we are of opinion that this section was not so intended. It is a proper rule for the interpretation of the Code, as we have frequently held, that it will not be presumed to change the old law, unless the intent be plain. Without doubt the old law, as laid down in 5 Georgia, 531, gave the .right to issue attachments against foreign corporations generally, and section 3191, being the old law in terms, would give the same right. So that by the Code we have by section 3191, the right generally, and this without any reference at all to section 3213. The ease stands, then, as though there were an authority to attach a foreign corporation in general terms, and, besides this, the provisions of sections 3213. Would two such provisions be consistent with each other? Can section 3213 stand in full force, and yet the right to attach a foreign corporation, not doing business here, exist? Of this we have no doubt. A foreign corporation, with an office doing business here, can be sued. It is, in some senses, a resident. And it [680] was, doubtless, for this reason that section 3213 was adopted. It was intended to authorize an attachment against a foreign corporation, even though it might be sued here. The property of a foreign corporation, even when it has a place of business' here, is always of a movable nature, consisting, generally, of debls due it, and a judgment against it is very difficult of execution, and the intent of the statute was to authorize an attachment even in cases where there was an agent here to be served. Perhaps, also, there was another intent in this section, to-wit: to provide, that if the corporation was doing business here, the attachment might, by proper proceedings by either party, be turned into a common suit, by notice or bond, under sections 3223 and 3243 of Irwin’s Revised Code. In either view of it, section 3213 can have its full force and literal effect, and section 3191 still stand, even as against foreign corporations. We think, therefore, there was error in dismissing this attachment for want of the statement in the affidavit that the corporation was doing business in this State. Whatever may be the legality or illegality of the plaintiff’s claim, as it may appear by the proof, the declaration contained legal counts, and ought not to have been dismissed because of the bad count. The money counts went into no detail, and were for money generally. We do not decide the other points made, to-wit: Whether the plaintiff was authorized to take judgment against a defunct corporation, before it was ascertained whether there were any effects, for the simple reason that no judgment was taken, nor so far as the record shows, any motion made for a judgment. The statement of the Court of his opinion, was no decision on which a bill of exceptions will lie. There was no judgment of the Court, and any opinion by this Court would neither affirm nor reverse any judgment of the Court below. See the case of Farrow vs. The State, at this term. Judgment reversed.