Tigrett v. Taylor

MAYFIELD, J. The chancery court of Colbert county had no jurisdiction. The main equities of the bill are to declare and enforce a trust, and to compel an accounting. Both parties to the trust and to the account are nonresidents, and most all the transactions between the parties occurred in other states. The bill also seeks to have respondent Tigrett compelled to surrender and deliver up to the complainant a great number of collaterals, consisting of notes, bonds, mortgages, deeds of trust, and corporate stocks, which are alleged to be held in trust for complainant. A few of the notes and one or more of the mortgages were executed by the respondent Turner, who resides in Colbert county, Ala.; and the lands embraced in one or more of these mortgages are situated in that county, and the bill seeks to foreclose this mortgage. These facts, the complainant claims, give the chancery court of Colbert county jurisdiction. If the bill was filed by the proper party to foreclose •this mortgage, the court would have jurisdiction for that purpose; but the equity of the bill or suit is not the foreclosure of this mortgage. ■ The bill affirmatively shows that it cannot be known that the complainant has, or will have, an interest in this mortgage, or the debt secured thereby, until an accounting and settle [302] ment is had; in fact, the purpose of the bill is to compel this accounting and settlement, in order to ascertain if the complainant has an interest therein, and, if so, to what extent; and if, on the accounting and settlement, it is ascertained that complainant has an equity in the notes and mortgage, then that Tigrett be required to surrender them to complainant, and that the mortgage be foreclosed. The foreclosure of this mortgage and the cancellation of other deeds are matters purely incidental to the main equities of the bill, and are sought for the purpose merely of doing full and complete equity in . the premises. The respondent Tigrett being a non-resident, and no service being had except by publication, the chancery court could not compel the accounting, discovery, or settlement, and could not compel the surrender of the collaterals, which, like the person of the respondent, are beyond the jurisdiction of the court; and, as before stated, until this is done it is confessed that it cannot be ascertained what interest, if any, the complainant has in or to these collaterals, including the deeds and mortgages on lands in Alabama. It therefore affirmatively appears, upon the' face of the bill, that any decree the court could render in the premises would be wholly void and of no effect. We can see no possible good to be attained by continuing the suit., unless personal service can be had upon the respondent Tigrett, or he voluntarily appears and defends. The mere fact that a plaintiff could partially or wholly satisfy a personal judgment against a non-resident by subjecting property in this state thereto will not, of itself, confer jurisdiction to obtain such personal judgment against the non-resident. The mere fact that a non-resident has property within the jurisdiction of [303] the state is not sufficient to justify an action in personam against the non-resident, where he has not been, and cannot be, served with process. Before the court, in such case, could proceed in rem against the property, it must be brought within the control of the court by seizure, levy, or other appropriate process against the property itself. It is insisted by the appellee that the case made by the bill is within the protection of section 3054 of the Code, in that “the object of the suit concerns an estate of, lien, or charge upon lands.” We have answered this contention by showing that this is not the object of the suit or the equity of the bill. Whether there can or should be any proceeding as against the land in Alabama, taking the averments of the bill as true, is contingent upon and merely incidental to the accounting and settlement of the trust. As there can be no discovery, accounting or settlement of the trust, it cannot be known that complainant has any estate in, lien or charge upon, the lands in Alabama. The only interest Tigrett is shown to have in the lands is that of mortgages; if the mortgagor should pay off the mortgage debt or redeem, then neither Tigrett nor complainant would have any possible interest therein. So the interest in the lands is wholly contingent upon the main equities of the bill, and is merely incidental to the relief sought. It is next insisted by appellee that Tigrett has waived the question of jurisdiction by assigning other grounds of demurrer to the bill than those which go to the jurisdiction. We cannot assent to this contention. There is nothing in this record showing that respondent Tigrett has ever waived the question of jurisdiction; to the contrary, it is shown that he has, on all occasions, from first to last, in the lower court and in this [304] court, insisted upon the tact that the lower court had no jurisdiction. The respondent first filed a motion to dismiss the bill for want of jurisdiction; the want thereof appearing on the face of the bill. This motion being overruled, he again raised the question, by a plea, and then by demurrer, and the question was in each instance ruled against him. The mere fact that he incorporated in his demurrer other grounds, going to the equity of the bill, should not be taken as a waiver of the question, nor as submitting to the jurisdiction. There should be some other act on the part of the respondent to show that he had either waived the question, or submitted his rights or person to the jurisdiction of the court. This does not here appear, but the contrary does appear. When the want of jurisdiction appears upon the face of the proceedings, as in this case, the question may be raised by motion to dismiss, or by demurrer; if the defect does not so appear, the question should be raised by a special plea. The rule is thus stated in 12 Encyclopedia of Pleading and Practice: “Appearance having no effect to waive a want of judicial power, the want of jurisdiction of the subject-matter may be raised by demurrer when such want appears on the face of the record, by motion to dismiss, or by motion in arrest, or the want of jurisdiction may be a ground for reversal on appeal or error, and the question may be raised even for the first time on appeal. If the Avant of jurisdiction does not appear upon the face of the record, the objection should be taken by ansAver or plea in abatement.” Page 186. “When the court has no laAvful power to act, by reason of the fact that such poAver either is not conferred or is expressly withheld, Avith regard to the subject-matter of the suit, the parties [305] thereto cannot he said to have waived their objection to this want of power because it is not made at the proper time. Such an objection cannot be waived, and is fatal at any stage of the proceedings.” — Pages 18b 189. “The jurisdiction of courts over the persons of the parties is another matter. The question is regarded as one of personal privilege in the party; and therefore if, by reason of a mere irregularity in the commencement of the proceedings, defective process, or even an entire absence of process, the objection that the parties are not properly brought before the court might lie, such an objection must be raised in limine, or it will be waived.” Page 191. “The dismissal of a bill on demurrer for want of equity practically amounts to the same thing as dismissing it for want of jurisdiction, because a court of equity grants relief only in cases and under circumstances falling within its peculiar province, and a bill of complaint must necessarily state facts which confer jurisdiction in stating a case for equitable relief or interference. If a court of equity has no jurisdiction, and this condition appears on the face of the bill, it is proper to demur, though, if no objection has been taken, the court may dismiss the bill at the hearing, if it does not state a proper cause for relief.” Pages 193, 194. It follows, therefore, that the trial court erred in its rulings as to jurisdiction, and should have dismissed the bill. The decree of the lower court is reversed. Reversed and remanded. Simpson, Anderson, Sayre, and Somerville, JJ., concur. Dowdell, C. J., not sitting.