Jos. Joseph. & Bros. v. Hoffman & McNeill

McCLELLAN, J. On the trial, this cause was, by agreement, “submitted on the plea of the general issue, with leave on the part of the defendant to introduce evidence of any matters of defense it might have to the action as though specially pleaded, and that the plaintiff might offer evidence of any matter on rebuttal as though a special replication was filed.” The cause or causes of action were stated in the common counts. This form of claim for a recovery arising out of special contract is well chosen when the contract has been fully executed on the plaintiff’s part, and nothing remains to be done on the part of the defendant but payment of the amount stipulated. — Holloway v. Talbot, 70 Ala. 389; Maas v. Mont. Iron Works, 88 Ala. 328, 6 South. 701. On May 22, 1905, July 11, 1905, August 11, 1905, August 14, 1905, September 13, 1905, and October 9, 1905, respectively, the plaintiffs (appellees) sold to defendant (appellant) “scrap” metals of various kinds at stipulated prices. Because of defendant’s failure to — 572 — pay the stipulated price as and when plaintiffs conceived the contracts obliged defendant, plaintiffs instituted this action in the circuit court of Jefferson county, Ala., on December 1, 1905. The defendant was and is a nonresident of this state. Writs of attachment were issued and served in the action, and answers were made by the garnishees, among them Republic Iron & Steel Company which, according to the recitals of the judgment entry, admitted an indebtedness of $2,000 to the defendant. In this action it was ascertained on April 23, 1910, that defendant was indebted to plaintiffs in the sum of $2,547; and the indebtedness of the Republic Iron & Steel Company to the defendant (appellant) was condemned to its satisfaction. On December 11, 1905, the Joseph Joseph & Bros. Company (defendant in this action) instituted its suit in the court of common pleas of Hamilton county, Ohio, against the plaintiffs in the suit at bar, for breaches of three several contracts of dates October 9, 1905, September 14, 1905, and August 11, 1905, respectively. The defendants (plaintiffs in our circuit court) being nonresidents of the state of Ohio, publication of notice to them was made as provided in the statutes of that state. Writs of garnishment were prayed and issued, and among those served therewith and answering thereto was the plaintiff (the defendant, appellant here). It confessed an indebtedness to the defendant (appellees, plaintiffs here) of $1,174.87. On June 27, 1906, the court of common pleas rendered a judgment, in solido, in favor of the plaintiff for $2,093.71, being the aggregate amount of damages claimed for the breaches declared on, with the interest, from December 1, 1905, included. The confessed indebtedness of plaintiff to the defendants was, by the judgment, appropriated and allowed as a credit on the judgment for $2,093.71 leaving — 573 — a balance in plaintiff’s favor of $918.84, aside from costs. It appears from the evidence (Statutes of Ohio, § 5530; Norton v. Norton, 43 Ohio St. 509, 525, 2 N. E. 348) set out in the transcript on this appeal, that under the laws of the state of Ohio garnishment lies against the plaintiff in action to subject debts, due by the plaintiff to the defendant, to the satisfaction of the demand for which the action is instituted. It also appears from other statutes of that state, admitted in evidence on the trial, that service by publication may be had in cases of nonresidence of that state. — Statutes of Ohio, § 5045 et seq. It further appears, from like character of evidence admitted on the trial, that attachment or garnishment is serviceable, in that state, to subject debts due, or to become due, nonresidents under the circumstances our statement indicates. While the right of a plaintiff to make himself a garnishee in his own action was denied by this court in a proceeding unaffected by the laws of another state (Woolridge v. Holmes, 78 Ala. 568), yet the rule is, as indicated, recognized and applied in Ohio, Pennsylvania, and other states. — Rood on Garnishment, § 39, and notes. The Ohio court is- shoAvn to have had jurisdiction to subject and appropriate the indebtedness of the plaintiff (there), to the defendants, to the satisfaction of the plaintiff’s (there) demands as declared on in the court of common pleas. Where, hOAvever, the defendant in attachment or garnishment is not personally served and does not appear (as was the condition of the cause in the court of common pleas), the court is Avithout poAvér — Avithout jurisdiction — to render a personal judgment over against the nonresident defendant therein. — Pennoyer v. Neff, 95 U. S. 714, 24 L. Ed. 565; — 574 — Cooper v. Reynolds, 10 Wall. 308, 19 L. Ed. 931; St.Clair v. Cox, 106 U. S. 350, 1 Sup. Ct. 354, 27 L. Ed. 222; Freeman v. Alderson, 119 U. S. 185, 7 Sup. Ct. 165, 30 L. Ed. 372; Exchange Bank v. Clement, 109 Ala. 270, 280, 281, 19 South. 814; De Arman v. Massey, 151 Ala. 639, 44 South. 688; Sweeney v. Tritsch, 151 Ala. 242, 44 South. 184; Planters’ Chem. Co. v. Waller, 160 Ala. 217, 225, 49 South. 89, 135 Am. St. Rep. 93; Shuttleworth v. Marx, 159 Ala. 418, 49 South. 83. The rule, in such cases, is to ascertain the amount of the plaintiff’s debt or demand, and then only render judgment condemning the property or indebtedness to the satisfaction of the ascertained debt or damages. — De Arman v. Massey, supra; Sweeney v. Tritsch, supra; Cooper v. Reynolds, supra. Accordingly, the court of common pleas of Ohio was without authority or power to render a personal judgment against the nonresident defendants therein; and hence that feature of its proceedings is a nullity everywhere. The proceeding in the court of common pleas was in rem only. It warrantably ascertained that plaintiff garnishee (there) was indebted to defendants (there) in the sum found; and condemned that sum to the benefit of the plaintiff (there), accordingly discharging any indebtedness from or liability by plaintiff (there) to defendants to the extent, only, of the sum ($1,174) so condemned. — Planters’ Chem. Co. v. Waller, supra; Shuttleworth v. Marx, supra; and other authorities before cited. And in accordance with the “full faith and credit clause” of the Constitution of the United States, we are bound to observe and give effect to that judgment of the Ohio court having jurisdiction to deal with the res. In this instance jurisdiction of the Ohio court to SO' appropriate the mentioned admitted indebtedness — 575 — appears from the evidence admitted on the trial of the case at bar. Notwithstanding this action was instituted before the action in the court of common pleas of Ohio was begun, the proceedings there progressed to finality before the judgment in the cause at bar was rendered. We see no evidence of fraud or collusion in or about the proceedings in the court of common pleas. As before indicated, the laws of the state of Ohio, radically different in that regard from our own, contemplate and allow the employment of attachment and garnishment as was done in its court of common pleas. The mere fact, if so, that the plaintiff in the court of common pleas of Ohio was aware that the complaint in this action, in Alabama, had been filed, is no predicate for the imputation to it (plaintiff there) of improper conduct. • The courts of that state were open to that plaintiff; and the fact that the jurisdiction of our courts had been theretofore, even shortly, invoked, but had not progressed to judgment, in the premises, between the like parties, could not denude the resident of the state of Ohio of his right to invoke the existent jurisdiction of the courts of that stae. Gomity might have appealed to the Ohio tribunal had it been advised of the fact that the jurisdiction of the courts of Alabama had first been invoked. — 11 Cyc. pp. 1017, 1018. But that, before judgment rendered in our courts, would have been a matter of grace and not the observance of a legal duty. It was said in M. & C. R. R. Co. v. Grayson, 88 Ala. 572, 579, 7 South. 122, 124 (16 Am. St. Rep. 69), by way' of approving quotation, supported by abundant authority, that “the first judgment rendered controls, whether the action in which it is reached be instituted before the other or not; and the rule applies where the first judgment is rendered in another state.” — 576 — The contention is that the proceeding in the court of common pleas necessarily adjudged, and to that end had jurisdiction, that defendants had breached the contracts there declared on; and so upon the conception that there could be no basis for a condemnation of the indebtedness of plaintiff garnishee to the defendants without an adjudication, by that court, of a liability from defendants to plaintiff, for the breach or breaches of the contract or contracts declared on. The scope and effect of the jurisdiction acquired with respect to a nonappearing and a not personally served nonresident defendant, as well as the nature of the proceeding, have been stated, according to the controlling doctrine of the before cited decisions. If the proceeding in the court of common pleas was given an effect whereby the breach or breaches declared on was or were bindingly adjudicated in conclusion, in that regard, of the defendant, it is evident that the process would operate beyond the jurisdictionally limited scope of the proceeding, would effect a result, against such a defendant, beyond the restricted jurisdiction so acquired to condemn the res, the indebtedness of the plaintiff -garnishee to the defendants. Such an adjudication, if allowed against a nonresident defendant only constructively, by publication, served and not appearing, would, of necessity, comprehend judicial action in personam; an action not possible with respect to the rights of a. defendant over whom the jurisdiction is restricted to the power to conclude his rights in the res. — Author, supra. In Exchange National Bank v. Clement, 109 Ala. 270, 280-281, 19 South. 814, it was said: “The judgment rendered must correspond to the nature of the proceeding. Of necessity, it must ascertain and declare the amount of the debt, claim, or demand sought to be enforced by — 577 — the attachment; and this must he ascertained and declared in the same mode and form as if the suit were in. personam. There must follow a condemnation of the property attached, or of the effects garnished, and the judgment may he enforced by any appropriate process pertaining to the court. Speaking of the judgment, its operation and effect, it was said by Miller, J., in Cooper v. Reynolds, supra: “The judgment of the court, though in form a personal judgment against the defendant, has no effect beyond the property attached in that suit. No general execution can he issued for any balance unpaid after the property attached is exhausted. No suit can he maintained on such a judgment in the same court or in any other, nor can it be used in evidence in any other proceeding not affecting the attached property; nor could the costs in the proceeding he collected of the defendant out of any other property than that attached in the suit.’ ” (Italics supplied.) The nature of the proceeding in the court of common pleas and the restricted jurisdiction acquired thereby lead, with certainty, to the conclusion that the phase of the finding by that court of breach or breaches of the contract or contracts there declared on did not, could not, conclude the not served and nonappearing nonresident defendants upon the issue of breach vel non of the contracts declared on. The consequence, upon the concrete case, is that the plaintiff in the cause at bar must, to be entitled to a judgment against the defendant, assuming the pleading by defendant of the judgment of condemnation of the court of common pleas of the sum (indebtedness) of $1,174.87, show a. right to recover, under their complaint in this action, a sum greater than $1,174.87, and the measure of their recovery must correspond to the excess above that sum ($1,178.87). If it be assumed — 578 — that the trial court was correct in its finding of the amount for which defendant was liable to plaintiff in this action, that amount should have been tolled by the amount of the indebtedness ($1,174.87) condemned by the court of common pleas. In this respect the judgment appealed from is erroneous, and, accordingly, the appropriation, through the judgment against the garnishee of the defendant’s indebtedness from its Alabama debtor, was, on the assumption stated, excessive, to defendant’s prejudice. The several contracts, between the parties • as evidenced by the several letters, required, under the evidence in this bill, the defendant to pay the “balance” for the materials when it was “unloaded.” We understand the trial court to have so interpreted the engagements in this respect. The bill of particulars furnished may have been indefinite. The use therein of the term “cars” evidently referred to their contents, and consisted, as the evidence shows, with the practice of so describing their contents. If the bill was merely indefinite, the objection should have been taken at the beginning of the trial. The view taken of the case is so different from that prevailing below, we think the adjustment of the rights of the parties litigant will be better conserved by remanding the cause, instead of finally determining it here. Reversed and remanded. Simpson, Anderson, and Somerville, JJ., concur. Dowdell, C. J., dissents.