Baxter & Co. v. Andrews

Beck, J. (After stating the facts.) 1. The plaintiff in error, in the maintenance of the position taken by it, contends that under the laws of Georgia the situs of a debt is with the creditor; and that, where it appears that the creditor is a non-resident, the courts of this State are without jurisdiction to entertain, garnishment proceedings which seek to seize or hold -the debt due to such non-resident. It is insisted that the rule just stated, relative to the situs of a debt, is general and capable of universal application under the decisions of our court. However varied and conflicting may be the decisions of other courts in this country touching the universal applicability of that rule, and several' decisions of our court cited in support of the theory advanced, an examination of those cases shows that each of them which touches the question under consideration was an attachment case; but in several of them very broad language is used, broad and general .enough in fact to support counsel for plaintiff in error in the position taken in his brief.. In the case of High v. Padrosa, 119 Ga. 648 (46 S. E. 859), it was said: “In the ease of Central Railway Company v. Brinson, 109 Ga. 354 [34 S. E. 597, 77 Am. St. R. 382], which was followed in Johnson v. Southern Railway Company, 110 Ga. 303 [34 S. E. [123] 1002], each being a decision by six Justices, the rule that the residence of the creditor fixes the situs of the debt was recognized and applied in garnishment cases. This rule was also applied in the cases of Henry v. Lennox-Haldeman Company, 116 Ga. 9, [42 S. E. 383], and Beasley v. Lennox-Haldeman Company, Id. 13 [Id. 385], each being a decision by only five Justices. Application is now made to review the two decisions first mentioned. Respectable authority may be found on either side of the questions involved in this case; but, after diligent investigation and mature reflection, the court as constituted when the decisions referred to were rendered adopted and followed the line indicated in the opinions in those cases.” But the ease of High v. Padrosa is. a case in which summons of garnishment issued in proceedings begun by attachment, and the eases cited in the decision under consideration were of a similar nature; and the rulings there made are not necessarily controlling in the present case. So far as we are advised, it has never been ruled in this State, in a suit where there had been per'sonal service such as would authorize the rendition of a judgment and an execution in personam against the defendant, that, although the defendant might have been a non-resident of this State,' a debt du'e him by a resident of this. State, upon whom summons of garnishment could have been served, was not liable to be seized or held by garnishment proceedings properly sued out. Tinder the circumstances last supposed, the authorities for holding that garnishment proceedings could be maintained to seize and hold such a debt ate numerous, and the reasons in support of them seem sound and conclusive. “For most purposes, — Taxation, distribution, .etc.,— it has long been a recognized and established fiction of law that their situs is at the domicile of the owner. It would seem almost impertinent to remark that this is a fiction merely, and that it is impossible, from the nature of things, for intangible property to have an actual location, were it .not for the fact some courts and text-writers have at times appeared oblivious to it. Though it is not discussed in the opinion, Chancellor Kent, as early as 1809, seems to have taken it for granted that this fiction does not apply to debts when they are sought to be reached by garnishment in a jurisdiction where the owner does not reside. And the same doctrine has been recognized and applied tacitly, or positively and directly asserted, in almost every court of last resort in America to [124] which the question has ever been submitted since that time; so that, notwithstanding some dissent, and more obiter, we may lay it down' as a general proposition that the residence of the defendant does not affect the question as to whether the debt should be considered as having a situs within the jurisdiction of the court for the purpose of garnishment, whether such principal defendant was personally served with process within the jurisdiction or not.” Eood on Garnishment, §242. The writer from whose work the above extract was taken cites a large number of decisions directly in point. The same writer in a subsequent section of his work said: “It is impossible to bring harmony out of chaos. Let us for a moment consider the reason and nature of things. In its essential elements, a garnishment suit is a suit brought by the principal defendant against the garnishee, in the name and for the benefit of the plaintiff. The plaintiff is empowered by law to step into the shoes of the'garnishee’s creditor, and acquire his rights; no more, and no less. Whatever he could do, the plaintiff, under the statutory novation of garnishment, may do, as his assignee and attorney in fact, by operation of law. Wherever the garnishee could be sued by the defendant for the demand, he may be charged as garnishee on account of it. Other States must recognize this right, if they recognize garnishment at all. This would seem to follow as of course, and the writer offers it as his humble opinion that this is the only true solution of the matter. The following cases declare the doctrine, and to these the reader is referred.” In addition to submitting several sound reasons for the conclusion reached, Mr. Eood' again cites a large number of cases in support of the position taken by him. With a large number of strong authorities and well-reasoned cases holding that a debt due to a non-resident may be reached by garnishment proceedings, we are unwilling to extend the ruling made by this court in attachment cases, unless the issue in the ease at bar is of such a nature as will necessarily bring it within the rulings made in those cases. And after a careful examination of the decisions by this court above referred to and the reasoning upon which they are based, we are of the opinion that they are not controlling upon the question raised in this record. In the absence of personal service or notice, an attachment -is a quasi proceeding in rem, or similar to such a proceeding. It depends entirely upon being levied by seizure or by garnishment. If [125] no property can be seized, it is of no effect. Tbe process is mesne; and if a levy is made, tbe cause must proceed to final judgment. A tax execution is final, not mesne, process. No further proceeding is necessary upon it than to levy and collect it. It is more nearly analogous to an execution issued upon judgment in a common-law suit. The garnishment issued upon it is more like a garnishment based upon a final judgment. After this court had held that, in attachment cases, debts due to a non-resident did not have such a situs as to authorize seizure by garnishment as a basis for further proceedings, the legislature passed an act declaring that they should have a situs sufficient for that purpose. Thus the legislature evidenced an intention to fix the situs of a debt due by a resident debtor as sufficiently in this State to be subject to garnishment. (Acts 1904, p. 100.) It is true that the act of the legislature only in terms referred to attachment cases, but that was doubtless because the situs had only been declared in attachment cases not to be sufficiently located in Georgia to support a seizure by garnishment. The act of the legislature went as far as the decisions had gone. We hardly think that it was the legislative intent to declare that the situs of the debt should be in Georgia to such an extent as to furnish the basis for the entire litigation, and yet not sufficiently here to furnish a basis for a garnishment based upon final judgment, or upon a tax execution more nearly analogous thereto than to an attachment process. Moreover, it has been held that where a nonresident had an agent in Georgia who sold goods sent to him partly on a credit, took notes and forwarded them to the principal office, and they were collected there, or, if collected in this State, the proceeds were sent to the principal office out of the State, there was sufficient situs to authorize the taxation of such debts in this State. Armour Packing Company v. Clark, 124 Ga. 369 (52 S. E. 145). In the present ease the execution was for taxes on account of the very business of the defendant in Georgia. The money (which apparently arose from the business) was deposited in a bank in this State. It does not appear that there was any specific contract for its payment elsewhere, but that the .bank would telegraph to the defendant and would pay the money as directed, or honor its draft. Thus there was a tax due on account of the business in Georgia, final process issued therefor, on which a garnishment could be based under the statute, and money of the defendant deposited in a bank [126] in this State. This was on general deposit, and therefore might be called a debt of the bank. But we think that there was such situs in this State as to authorize a garnishment to be served upon th'e bank and to subject the accounts-of such deposit. Judgment affirmed. All the Justices concur.