Harvey v. Thompson

Cobb, P. J. (After stating the facts.) 1. This case is before us under that provision of the constitutional amendment creating the Court' of Appeals which declares that when, “in a case pending in the Court of Appeals, a question is raised as to the construction of a provision of the constitution of this State or of the United States, or as to the constitutionality of an act of the General Assembly of this State, and a decision of the question is necessary to the determination of the case, the Court of Appeals shall so certify to the Supreme Court, and thereupon a transcript of the record shall be transmitted to the Supreme Court, which, after having afforded to the parties an opportunity to be heard thereon, shall instruct the Court of Appeals on the question so certified, and the Court of Appeals shall be bound by the instruction so given.” Acts of 1906, p. 26; 126 Ga. XVIII. At the hearing of this case counsel for the defendant in error contended that an examination of the record would disclose that a decision of the constitutional question was not necessary to the determination of the case. We decline to examine the record to determine the question thus raised by counsel. Under the constitutional amendment the question as to whether a decision of the constitutional question certified is necessary to the determination of the ease before the Court of Appeals is a matter to be determined by that court; and when it certifies to this court that the determination of such a question is necessary, we can not undertake to decide whether the Court of Appeals has properly determined this question. Under the constitution we have no jurisdiction of any of the other questions raised in the case; and it is impossible for us to decide whether the decision of the constitutional question is necessary, without referring to other questions raised by the record. We have no power to review a decision of flae Court of Appeals on any question. The sole authority of , this — 149 — court in reference to eases coming from that court to this court is to decide the questions certified to this court. We do not intend to intimate in the slightest way that in our opinion the Court of Appeals has erred in its conclusion as to the necessity of a decision of the constitutional question. We have simply declined to examine the record as to this matter. The constitution declares that “the decisions of the Supreme Court shall bind the Court of Appeals as precedents •” but this means that the Court of Appeals, in determining a' ease within its jurisdiction, must respect the prior adjudications of this court. There is nothing in this provision which, under any view, • authorizes the Supreme Court to review any ruling of the Court of Appeals in any case, whether it reaches this court in the form of a certified question or otherwise. The judgments of that court are binding upon the parties in the eases therein, even though the decision, in a given case, may conflict with the decisions of the Supreme Court. 2. The question as to where-is the situs of intangible property, such as dioses in action, for the purpose of attachment and garnishment, is one that has been the subject of numerous decisions. The conflict of opinion on the subject is distressing and hopeless. In some cases it is held that the situs, for the purpose of garnishment proceedings, is the domicile of the principal defendant, in -others that it is the domicile of the garnishee, and still others that it is the domicile of the debtor or wherever he may be found and sued. 20 Cye. 1036; Brown on Jurisdiction (2d ed.), §150. The conclusion reached by this court in its former decisions was in line with those cases which held that the situs, for the purpose of a garnishment, was at the residence of the principal defendant, that is, at the residence of the owner of the debt. Central Ry. Co. v. Brinson, 109 Ga. 354; High v. Padrosa, 119 Ga. 648; s. c. 122 Ga. 264; Glower v. Glidden Varnish Co., 120 Ga. 983. The law recognizes a right of property in things which are intangible, such as choses in action, and the like. Property of this character, having its existence only in the contemplation of the law, can have no inherent fixed place of existence. The law may give such property a location; but wherever it may be located by the law, at the foundation of its legal location there is, at best, only a fiction. The law can not indulge the fiction except by attaching the intangible property, which is the creature of the law, to the person — 150 — of some individual. It is at this point that the courts have diverged in their conclusions, when it has become necessary to give-' a chose in action a location for the purpose of a proceeding in. garnishment. Some have fixed this location at the residence of the principal defendant in the garnishment proceeding (that is, the owner of the debt sought to be attached), upon the theory that the intangible property follows the person of- the. owner. As has been seen, this is the conclusion that the judges of this court have, at different, periods, uniformly reached. Other courts have reached the conclusion that, for the purpose of a garnishment proceeding, the place of the residence of the debtor owing the debt-sought to be attached (that is, the garnishee) may be treated as the locus of the debt, upon the theory that the debtor is under obligation to pay his creditor, or any one representing him or claiming under him, whenever and wherever the debt may be demanded of him, in the absence of .a statute or a contract regulating the place of payment. Other courts have taken the position that the question is to be determined by ascertaining whether the principal defendant could be sued at the place where the garnishment proceedings are instituted. If so, the debt is subject to the-garnishment, if the-garnishee is also subject to suit at that place, for the reason that the garnishment proceeding is merely a substituted suit against the principal defendant. In all of the cases, whatever the conclusion that may have been reached, -it is the result of what is intended to be an application of the principles of general jurisprudence. The conflict arises from the different opinions as to the application of these general principles. This court, in the cases above cited, reached the conclusion that, under the principles of general jurisprudence, the situs of the debt for the purpose of garnishment was at the domicile of the creditor, — that is, where the owner of the debt resides, — and not at the domicile of the debtor. The question now arises, is it within the power of the General Assembly to change the rule laid down by this court? The General Assembly, of course, has no power to declare that land and tangible personal property situated beyond the limits of this State shall be dealt with by the courts of this State as if it were located here, for the reason that some person interested therein, or having the possession thereof, or under some obligation in connection herewith, happens to be within the limits of this State. — 151 — .Such, property not being actually within the jurisdiction of the State, and being actually beyond its jurisdiction, and being of a class that has real existence independently of any fiction of the law, its location is where it is actually situated, and, of course, it can not be made the subject of a seizure under the process of the courts of this State. But where the property has no actual location resulting from the inherent character of the property, and its location depends upon the application of the general principles of jurisprudence as drawn from the common law, the lawmaking power of the State may provide that for certain purposes such property shall have a locus within the State whenever there is within the jurisdiction of the State a person having som.e relation to the property which can be treated as giving the property a locus within the State without doing violence to some constitutional right of other persons interested therein. The act in question simply changes the rule as laid down by the decisions of this court, so as to prescribe the rule which other courts had laid down as the true rule under the principles of general jurisprudence. The General Assembly has authority to change the rule of the common law, as held by this court, provided the act changing the same is not subject to some constitutional objection. On the subject now under consideration this court simply endeavored to adhere to what it understood to be the true rule derivable from common-law principles. If, for any reason, the rule thus laid down was, in the judgment of the General Assembly, not a wise rule to be followed, it was within the power of that body to change the rule in any way and to any extent that it saw proper, provided there was nothing in the new rule laid down violative of the constitution of this State or of the United States. The fact, therefore, that the act in question changes the rule laid down by the Supreme Court is, of itself, no reason why it should bé held invalid. The law as announced by the Supreme Court is subject to modification or change by the General Assembly, within the limits above referred to. The sole question, therefore, is whether, without reference to. the former’decision^ of this court, the act in question is subject to any constitutional objection. While the former decisions of this court are supported by the decisions of other courts of high and respectable standing, the rule laid down by the act in question is on'e that is also supported by — 152 — courts of equally high- and respectable standing. In Williams v. Ingersoll, 89 N. Y. 523, Earl, J., having laid down, as a general principle, that the situs of. the debt, for the purposes of garnishment, is at the residence of the creditor, and not at the residence of the debtor, says, “The local laws may fix the situs of the debt at the domicile of the debtor, and under such laws it may be effectually attached against a non-resident creditor, and compulsory payment under the attachment will protect the debtor everywhere against a suit for the recovery of the same debt by the creditor.” See, also, Embry v. Hanna, 5 Johns 101; Douglas v. Phœnix Ins. Co., 33 N. E. (N. Y.), 940. The act in question simply declares that the situs of the debt shall, for the purpose of attachment and garnishment, be at the residence of the garnishee in this State. We are aware that in the case of Louisville & Nashville P. Co. v. Nash, 118 Ala. 483, that eminent and learned jurist, Mr. Chief Justice Brickell, saj's, in his opinion, that legislation fixing the situs of debts different from that in which it is fixed under the principles 'of general jurisprudence “would be as nugatory and ineffectual to dispose of the creditor’s property in the debt as would be legislation attempting to acquire jurisdiction over tangible property situated without the State.” We can not concur in this view. The radical difference between the two classes of property would make legislation effectual in the ease of one class which would be ineffectual as to the other class. In Harris v. Balk,' 198 H. S. 222, Mr. Justice Peckham says: “Attachment is the creature of the local law, that is, unless there is a law of the State providing for and permitting the attachment, it can not be levied there. If there be a law of the State providing for the attachment of the debt, then, if the garnishee be found in that State, and process be served personally upon him therein, we think the court thereby acquires jurisdiction over him, and can garnish the debt due from him to the debtor of the plaintiff and condemn it, provided the garnishee could himself be sued by his creditor in that Stated’ In that case Harris was a resident of North Carolina, and was indebted.to Balk, who was also a resident of North Carolina. Epstein, a resident of Maryland, sued out an attachment- in Maryland against Balk, and caused summons of garnishment to be served upon Harris, who was temporarily in Maryland. Judgment was rendered on the garnishment against — 153 — Harris by tbe court in Maryland. Balk thereafter sued Harris in North Carolina, and Harris pleaded in bar the Maryland judgment and his payment thereof. It was held that the judgment of the Maryland court was a valid and binding judgment, and that as Balk had notice of the garnishment in time to have' appeared in that ease and pleaded any defense that he had against Epstein, the judgment of the Maryland court was a complete defense to the suit in the North Carolina court. It is said in that case that the garnishee should notify the defendant of the garnishment proceeding and give him an opportunity to defend, and that failure to give notice may, under some circumstances, be such negligence as would prevent a garnishee from pleading the judgment against him in bar of a subsequent suit by his creditor. See, in this connection, Central Law Jour. 265. In Chicago, etc., Ry. Co. v. Sturm, 174 U. S. 718, it is said that there are cases both for and against the proposition that it is the duty of the garnishee to notify the defendant. Mr. Bood, in his work on Garnishments, lays down’the rule that if the principal defendant has been personally served, or has appeared, no notice need be given him of the proceedings by garnishment, unless such notice is required by the statute under which the garnishment is sued out. Rood on Garnishment, §208. See also 20 Cyc. 1054. In Morgan v. Neville, 74 Pa. State, 52, it is said that a garnishee in a foreign attachment to protect himself must give notice to his own creditor. It does not appear, in that case, that there was any statute requiring such notice. In Union Pacific Ry. Co. v. Smersh (Neb.), 36 N. W. 139, it is said that even though the statute does not require the notice to be given by the garnishee to the judgment debtor, yet the courts have power to require the notice to be given before the garnishee files his answer, in order that the debtor may protect his rights, and, if the money or property is exempt, have an opportunity to plead the exemption. The conclusion we arrive at is that if the garnishee has a residence in this State, or is temporarily here, and can be served with process, a judgment rendered on the attachment and garnishment is a valid judgment, which binds the plaintiff in attachment and the garnishee. Under the authorities above referred to, it would seem that the question as to whether such judgment may bo pleaded in bar by the garnishee, in a subsequent suit by his creditor against him, might depend upon the question whether there — 154 — was any fraud or collusion in reference to the garnishment proceeding, and whether the garnishee was negligent in reference to-causing notice to be given to liis creditor of the garnishment proceeding in order that he might defend against the claim asserted in that proceeding. These questions are not now before us. A foreign railroad company operating a line of railroad in this State and having agents and a place of doing business within the State, upon whom, under the general laws of the State, process may be served, is a resident of this State, subject to suit -under the same rules' and regulations where other residents may be sued. Reeves v. Sou. Ry. Co., 121 Ca. 561; Sou. Ry. Co. v. Grizzle, 124 Ga. 739 (3). The fact that the contract under which the debt arose, sought to be garnished, is, by its terms, payable in another State, would not oust the jurisdiction of this court in a garnishment proceeding, in the event that the court had jurisdiction of the person of the garnishee. In such a case the non-resident debtor could be sued in the courts of this State by his creditor, notwithstanding the fact that the debt was payable elsewhere; the question as to'the right to bring garnishment proceedings in this State being whether the garnishee is within the jurisdiction of the court and suit could have been'maintained-by the principal defendant against his debtor in the courts of this State. We therefore say, in answer to the question of the Court of Appeals, that the act in question is not contrary to the constitution of the United States, or the constitution of the State of Georgia, for the reason that the General Assembly has no authority to pass an act having extra-territorial effect, nor for the reason that it deprives the plaintiff of his property without due process of law. Fish, C. J., absent. The other Justices concur.