Clark Milling Co. v. St. Louis Southwestern Railway Co.

Bell, J. (After stating the foregoing facts.) The court can acquire no jurisdiction over a defendant’s property by attachment without a valid levy or a seizure, of his property by garnishment. Associated Press v. United Press, 104 Ga. 51 (2); Baker v. Aultman, 107 Ga. 339 (1) (29 S. E. 869); Massachusetts Bonding Co. v. U. S. Conservation Co., 31 Ga. App. 716 (122 S. E. 728); United Provisions Corp. v. Board of Missions, 33 Ga. App. 9 (1) (124 S. E. 820). The defendant was not to be held as having appeared and pleaded to the merits merely because the pleading first filed was marked “answer,” since it appeared therein that the very purpose of the appearance was to contest the court’s jurisdiction. A pleading should be construed not simply by what it is called, but according to- what it is. There being nothing, in either pleading filed by the defendant, that amounted to an appearance and pleading to the merits, the court did not acquire jurisdiction by waiver. Civil Code (1910), 5664; Hall v. Roehr, 10 Ga. App. 379 (2) (73 S. E. 550); Epps v. Buckmaster, 104 Ga. 698 (30 S. E. 959). Upon the question whether there was seizure under the garnishments, the case is controlled by the following ruling of the Supreme Court, in Southern Flour & Grain Co. v. Northern Pacific Ry. Co., 127 Ga. 626 (1) (56 S. E. 742, 9 L. R. A. (N. S.) 853, 119 Am. St. Rep. 356, 9 Ann. Cas. 437): “Where a railroad company of this State receives from a railroad company in another State a car, under a contract by. which the domestic company has the right to carry the car loaded to its destination in this State and unload it, and then to reload and return it to the owner beyond the limits of this State, paying for the use of the car, the right of the domestic company to the use of the car is superior to the right of an attaching creditor, who, without any other lien, seeks to subject the car to attachment by service of the summons of garnishment upon the domestic company; and, in the absence [663] of appropriate equitable pleadings in a court with jurisdiction to render affirmative equitable relief, such car is not subject to the process of garnishment.” The plaintiff contends that this decision is in conflict with later adjudications, and also that, for several reasons, it is not sound, and has requested this court to certify to the Supreme Court the question whether it should be followed. But since the Supreme Court, in Southern Railway Co. v. Brown, 131 Ga. 245 (62 S. E. 177), expressly refused to review and overrule it, we will decline the request to certify. Neither can we assent to the proposition that the decision in the Southern Flour & Grain Company case is superseded by the subsequent ruling of the Supreme Court of the United States in Davis v. Cleveland &c. Ry. Co., 217 U. S. 157 (54 L. ed. 708 (4)). In the first place, the ruling quoted above does not deal with a federal question, but is confined to an enunciation of the law of this State. While the liability claimed against the defendant is under the amended interstate commerce act, the final interpretation of which is for the Supreme Court of the United States (American Ry. Express Co. v. Roberts, 28 Ga. App. 510 (3), 111 S. E. 744), we have for decision in this connection only the question as to what is subject to garnishment under the local law. In the second place, the federal decision relied upon by the plaintiff in error does not hold anything contrary to the adjudication in the Southern Flour & Grain Company case. The point decided, so far as here apropos (see the decision and judgment then under review, 146 Fed. 403), was that the enforcement of the local garnishment laws of the State of Iowa, where the case originated, was not, under the particular facts shown, an unwarranted interference with interstate commerce. On this question see also Davis v. Farmers Co-operative Equity Co., 262 U. S. 312 (67 L. ed. 996, 43 Sup. Ct. 556); Atchison &c. Ry. Co. v. Wells, 265 U. S. 101 (68 L. ed. 928, 44 Sup. Ct. 469) 1923-1924, p. 532; Southern Flour & Grain Co. v. Northern Pacific Ry. Co., supra. We hold that the trial court did not err in discharging the garnishees and dismissing the attachment. Judgment affirmed. Jenlcins, P. J., and Stephens, J., concur.