Bank of Phoebus v. Byrum

Keith, P., delivered the opinion of the court. The Bank of Phoebus brought an action of debt against By-rum in the Circuit Court of Elizabeth City county, upon a negotiable note for $589, which was due and payable, and sued out an attachment and served the same upon the Merchants National Bank of Hampton, which had in its possession money belonging to the defendant. The defendant moved the court to quash the attachment on the sole ground that it was sued out on false suggestion; the defendant being a resident of the State of Virginia. Byrum was born in North Carolina and resided there continuously until 1898, when he came to Fortress Monroe and enlisted as a soldier in the army of the "United States, in which service he has continued until the present time. Upon this evidence the court, being of opinion that the defendant was a resident of Virginia, sustained the motion to quash the attachment, and that judgment is before us upon a writ of error. The territory known as Fortress Monroe was, by act of the General Assembly of Virginia of 1820, and a deed made in pursuance of that act, ceded and conveyed to the United States. It was acquired by the United States for military purposes, and has been and is now held for such uses and purposes. It is provided by the Code of this State, section 15-a, paragraph 2, that “exclusive jurisdiction in and over any land so acquired by the United States shall be, and the same is hereby, ceded to the United States for all purposes except the service [710] upon such sites of all civil and criminal process of the courts of this State; but the jurisdiction so ceded shall continue no longer than the said United States shall own such lands.” The fact that process can or cannot be served upon a defendant is not the test of the right.to issue an attachment against him as a non-resident. In Shinn on Attachments, section 108, it is said: “Where one is in fact a non-resident, his property will be liable in a foreign attachment, notwithstanding the fact that the defendant may be in the State at the time it is sued out. Uor will the allegation of non-residence be defeated by the fact that the defendant is personally served. The effect'of such personal service will, of course, be to give the court jurisdiction to enter a general judgment and issue an execution, not only against the property attached but generally against the defendant and all of his property.” And to the same effect see Clarke v. Ward, 12 Gratt. 440; Long v. Ryan, 30 Gratt. 721; Didier v. Patterson, 93 Va. 541, 25 S. E. 661. The real question here is whether or not a person born and domiciled in Earth Carolina, who comes to Eortress Monroe for the purpose of enlisting in the army, enlists and remains an enlisted soldier of the United States, thereby acquires a residence in this Comm onwealth so as to defeat the right of a creditor to issue an attachment against him. If the power to serve a process were the test, clearly the reservation made by the State would be sufficient to cover this case, but that reservation of right to serve a process has nothing to do with the personal status of the individual. In the case of United States v. Cornett, 2 Mason 60, Mr. Justice Story said: “There is nothing incompatible with the exclusive sovereignty or jurisdiction of one State that it should permit another State in such cases to execute its process within its limits. And a cession of exclusive jurisdiction may well' be made with a reservation of a right of this nature, which then operates only as a condition annexed to the cession, and as an [711] agreement of the new sovereign to permit its .free exercise as quod hoc, his own process. This is the light in which clauses of this nature (which are very frequent in grants made hy the States to the United States) have been received by this court on various occasions, on which the subject has been heretofore brought before it for consideration, and it is the same light in which it has also been received by a very learned State court”— citing Commonwealth v. Clary, 8 Mass. 72. In Foley v. Shriver, 81 Va. 573, the question was whether the National Home for Disabled Volunteer Soldiers was subject to the jurisdiction of the Circuit Court of Elizabeth City county, and this court said: “In this case the State legislature having given the.required consent, and the United States having purchased the land in question, the United States have acquired, under the Eederal Constitution, exclusive jurisdiction over the ceded lands, and they are no longer a part of the State of Virginia, and are not subject to the jurisdiction of the State courts. Persons residing there are not citizens of Virginia; the property situated there is not subject to the control or disposal of any State court; and the Circuit Court of Elizabeth City county is without jurisdiction within said territory.” In Jacobs on the Law of Domicile, sec. 303, it is said: “Neither quasi national nor municipal domicile of a person is affected by his enlistment or acceptance of a commission in the military or war marine service of his country. He does not thereby lose the quasi national or municipal domicile which he had when he entered the service, nor does he acquire [one] at the place where he serves.” In Lyon v. Vance, 46 W. Va. 781, 34 S. E. 761, where a resident of the State of West Virginia entered the volunteer service of the United States, and with his regiment went beyond the limits of the State, and remained for some time in such service, it was held that he did not thereby become a nonresident of the State, within the meaning of the attachment law; and, that being the only ground of attachment against him, a [712] valid attachment could not on that ground he sued out against his property.- In Ft. Leavenworth R. Co. v. Lowe, 114 U. S. 525, 29 L. Ed. 264, 5 Sup. Ct. 995, the Supreme Court says: “When the title is acquired by purchase by consent of the legislatures of the States, the Federal jurisdiction is exclusive of all State authority. This follows from the declaration of the Constitution that Congress shall have ‘like authority’ over such places as it has over the district which is the seat of government; that is, the power of ‘exclusive legislation in all cases whatsoever.’ Broader or clearer language could not be used to exclude all other authority than that of Congress; and that no other authority can be exercised over them has been the uniform opinion of Federal and State tribunals, and of the Attorneys General. The reservation which has usually accompanied the consent of the States that civil and criminal process of the State courts may be served in the places purchased, is not considered as interfering in any respect with the supremacy of the United States over them;, but is admitted to prevent them from becoming an asylum for the fugitives from justice.” For the foregoing reasons we are of opinion that the defendant in error did not acquire a residence in the State of Virginia by reason of having enlisted in the army of the United States and resided as such enlisted soldier at Fortress Monroe; that, being a non-resident, his property was subject to attachment; and that the judgment of the circuit court must be reversed. Reversed.