National Bank v. Furtick

Marvel, J., delivered the opinión of the Court. It was contended by counsel for the garnishee in this case that the attachment should be vacated for two reasons: 1. Because of want of service upon the statutory officer; 2. Because the debt under the facts was not the subject of attachment in the State of Delaware. We will first consider whether there was such a service upon the garnishee, as to give the Court jurisdiction. The garnishee is a foreign corporation and it is unquestioned law that the service must be in accordance with the provisions of the statutes of this State. The sufficiency of the service therefore, depends upon the requirements of the statutes. What these requirements, are as-applicable to the case before us, depends upon which statute controls,—the general insurance law regulating the transaction of business in this State by foreign fire insurance companies, or the attachment statute providing for the summoning of corporations as-garnishees. The insurance law passed March 24th, 1879, (Sec. 7, Chap-347, Vol. 16, Del. Laws), and amended for the last time March17th, 1881 (Chap. 140,Vol. 16, Del.Laws),provides: “Thatbefore insurance companies shall be permitted to transact business in this State, they shall file with the Insurance Commissioner a certificate of the name and residence of some person, or agent, within this State, upon whom service of process may be made, and all processes against said company, issued out of the Courts of this State may then and thereafter be served upon such person or agent so — 49 — designated.” At the time of the passage of this law, and the last amendment thereto, the act relating to attachments, authorized the summoning of corporations as garnishees in attachment proceedings only in the case of “ corporations chartered by act of the General Assembly” of this State (Chapter 90, Volume 14, Laws of Delaware). It was not until -April 25th, 1894, that the Legislature amended this statute, generally known as the attachment act, and subjected all corporations “doing business in this State to the provisions of the laws in relation to garnishees” (Chapter 681, Volume 18, Laws of Delaware) and this statute provided that “service of the summons upon the president, treasurer, cashier or paying clerk, as provided in other attachment cases, shall be sufficient to render said officers and the corporation subject to all the liabilities provided by the said law.” Thus it is seen, that prior to March 31, 1871, corporations were not subject to the attachment laws of this State, and that by the act of that date only certain corporations “chartered by the act of the General Assembly of the State, were made liable to be summoned as garnishees in attachment proceedings. Foreign corporations were not included. The insurance law of March 17th, 1881, did not extend the attachment law nor authorize the issuing of attachment process against foreign corporations, but only provided that before foreign insurance companies should be permitted to do business in this State, they must appoint an agent upon whom all processes against them issued out of the Courts of the State might be served. It provides only for service of process already authorized by law, and attachment against foreign corporations was not then expressly recognized as such a process. It was not until eight years after the passage of this act that the attachment laws were amended and for the first time “ made foreign corporations doing business, in this State” subject to be summoned as garnishees in attachment proceedings, and under this act process could be served only on the “ president, treasurer, cashier or paying clerk of such corporation,” — 50 — It is true as contended by the counsel for the plaintiff that the attachment statute is a remedial statute, and that as a general rule when the object of a statute is remedial, it is to be construed liberally. But it is equally true that when the remedy is sought to be obtained by summary proceeding and under a statute which is in derogation of the common law, a statute is to be strictly construed and must be exactly followed by those who act under or in pursuance of it. “ A proceeding in attachment, as authorized by the statutes of the several states, is always viewed as a violent proceeding wherein the plaintiff, at the inception of his suit, seizes the property of the defendant without waiting to establish his claim before the judicial tribunals of the land, and the statute authorizing it has invariably received a strict construction.” Black on Construction of Laws, 315. This rule of construction has become so general in this country that in some of the States statutes have been enacted directing that the attachment laws shall be liberally construed; As before stated, the attachment statutes of this State expressly provide upon whom service must be made, to give the Court power to appropriate to the satisfaction of the plaintiff’s demand—the effects or credits of the debtor, in the hands of the garnishee—for it is by the service of the writ that the Court gets control of the property. To acquire jurisdiction and secure such control the terms of the statute must be strictly followed. . The power originates with the statute and exists only to the extent plainly granted. This has been recognized to be the law in this State. In Penna. Steel Co. vs. New Jersey S. R. Co., 4 Houst. 572; and in Frankel vs. Satterfield, 9 Houst. 209, the Court (per Grubb, J.) said: “ In this State the institution of a suit by foreign attachment process is a statutory proceeding, which must be pursued conformably with the provisions authorizing it.” We are therefore, of the opinion that service of process upon corporations, when such corporations are to be summoned as garnishees, must be made upon one of the officers designated in the statute relating to attachments. Ferdinand L. Gilpin under the facts of this case was not such — 51 — an officer, being neither the president, treasurer, cashier nor paying clerk, and the attempt to serve the writ upon the Liverpool, London and Globe Insurance Company, through him was ineffectual to bind the corporation, and it should be discharged. If the garnishee should be discharged, no other property being attached, there was nothing to give the Court jurisdiction and the attachment should be vacated. The second reason assigned why the attachment should be vacated was that even if it could be granted, that service was had upon the statutory officer, the debt, under the facts of this case, was not the subject of attachment. To reach a satisfactory solution of this proposition will require an examination into the nature of attachments and garnishment, and the law fixing the situs of the res when that res is a debt or other chose in action. In doing this we will confine ourselves to the consideration of the attachment and garnishment proceedings against non-residents alone. In Wells vs. Stevens’ Admrs., 2 Houst. 370, Houston, J., said: “ In this State, a suit by foreign attachment is in its original character, in the nature of an ex parte proceeding in rem to judgment of condemnation against the property bound by the foreign attachment; for, while it continues such, there is no appearance of the defendant, no defense whatever pleaded, no issue joined and no trial had.” This was followed in Frankel vs. Satterfield, 9 Houst. 201, where the Court, per Grubb, J., said: “ Under the statutory provisions, it is plain that if no property has been attached by writ, there can be no attachment to dissolve, no security given, no appearance by the defendant, no action in personam and, consequently from want of jurisdiction, no judgment in personam. Nor can there be a judgment in rem for like reasons.” These views are not new. They have been frequently expressed with more or less distinctness, in opinions of eminent judges,and have been carried into adjudications in numerous cases. The Supreme Court of the United States, in Cooper vs. Reynolds, 10 Wall. 318, in the case of absence of personal service on the de — 52 — fendant within the jurisdiction, said : “ The Court in such a suit cannot proceed unless the officer finds some property of the defendant on which to levy the writ of attachment. A return that none can be found is the end of the case and deprives the Court of further jurisdiction, though the publication may have been duly made and shown in Court. Now, in this class of cases, on what does the jurisdiction of the Court depend? It seems to us that the seizure of the property, or that which, in this case, is the same in effect, the levy of the writ of attachment on it, is the one essential requisite to jurisdiction, as it unquestionably is in proceedings purely in rem,. Without this, the Court can proceed no further. With it the Court can proceed to subject the property to the demand of the plaintiff. If the writ of attachment is the lawful writ of the Court, issued in proper form, under the seal of the Court, and if it is by the proper officer served upon property liable to the attachment, when such writ is returned into the Court, the power of the Court over the res is established, and in the subsequent and well considered case of Pennoyer vs. Neff, 95 U. S. 723, Mr. Justice Field said: “It is in virtue of the State’s jurisdiction over the property of the non-resident, situate within its limits that its tribunals can inquire into that non-resident’s obligations to its citizens, and the inquiry can then be carried only to the extent necessary to control the disposition of the property. If the non-resident has no property in the State, there is nothing upon which the tribunals can adjudicate.” Hart vs. Sansom, 110 U. S. 151; Arndt vs. Grigg, 134 id. 316; Grier vs. Medicine Co., 137 id. 287; Wilson vs. Seligman, 144 id. 44; Scott vs. McNeal, 154 id. 341; Goldey vs. Morning News, 156 id. 518; Rorer, Inter-State Law 174; Drake on Attachment §§ 54, 52, 453, 478; Waples on Attachment 227, 244, 249; Story on Conflict of Laws §§ 532, 592a. Garnishment, as in this case, is a form of attachment. It is an attachment, by means of which money or property of a debtor, in the hands of third parties, which cannot be levied upon, may be subjected to the payment of fhe debtor’s claim. To subject the — 53 — property or credit to attachment and thus confer jurisdiction, it must be within the jurisdiction, so that the Court may obtain legal control of the res, otherwise it could make no legal disposition of it, because it is an axiomatic principle of law that the Courts cannot change rights of property situate without the State. Ins Co. vs. Hettles, 56 N. W. Rep. 711. These principles governing attachment and garnishment proceedings against non-residents are founded upon reason, and established by the adjudicated cases of the highest Courts and recognized by nearly all text writers. It being essential then that, in the absence of personal service within the jurisdiction, an actual seizure of, or levy on property of the absent defendant within the jurisdiction should be had, and until this is done, the jurisdiction is not established, the question of the situs of the property or res is one of paramount importance. This inquiry could present no difficulty in respect to real estate, and little or none in regard to tangible personal property, having an actual situs. But for the purpose of jurisdiction, the situs of a debt or chose in action is a question upon which there has been some diversity of opinion. There is, of course, no actual or visible, but only constructive situs. Does the debt follow the creditor and his domicil, or the debtor and his domicil ? The legal title and right are clearly in the creditor and by analogy to the principle that constructive possession is with the rightful owner, we should expect that the chose in action, particularly a debt, follows the person of the creditor for the purpose of attachment, as well as for many other purposes. And such seems to us to be the law. Especially where there is no stipulation to the contrary; Central Trust Co. vs. Chattanooga R. and C. R. Co., 68 Fed. Rep. 685; Douglass vs. Ins. Co., 138 N. Y., 209; Everett vs. Walker, Conn. Mut. Life Ins. Co., Garnishee, 36 Pac. Rep. .616; R. R. Co. vs. Maggard, 39 Pac. Rep. 985; State Tax on Foreign Held Bonds, 18 Wall. 300; Wis. Pac. Ry. vs. Sheritt, 43 Kan. 375; Renio vs. Hurlburt, 50 N. Y. 783; Cole vs. Cunningham, 133 U. S. 107. This was laid down in the case of State tax on foreign held — 54 — bonds, 15 Wall. 300, where Mr. Justice Field says: “ Debts owing by corporations, like débts owing by individuals, are not property of the debtors in any sense. They are obligations of the debtors and only possess value in the hands of the creditors. With them they are property and in their hands, they may be taxed. To call debts property of the debtor is simply to misuse terms. All the property there can be, in the nature of things, in debts of cor,porations, belongs to the creditors to whom they are payable, and follows their domicil, wherever they may be. Their debts can have no locality separate from the parties to whom they are due. The same rule has been held to apply for discharge under insolvent laws, Reno on Non-residents § 271; Maine vs. Messner, 17 Oreg. 78. The principle seems well established in cases of attachment for the purpose of giving jurisdiction, especially when the debt is payable at the domicil of the creditor. In Douglass vs. Ins. Co., 138 N. Y., 209, the facts were that the insurance company, a corporation formed under the laws of the State of New York, was indebted to Douglass, a citizen of New York, the insured, on account of a loss. The insurance company had an agent in Massachusetts appointed under the laws of that State upon whom process might be served, and was engaged in carrying on business in that State. Alley and other creditors of Douglass brought suit in Massachusetts, jointly, against the Insurance Company and Douglass, and the attachment or trustee process was served on the legal agent and levied on the debt. This was set off as a defence to the suit on the policy by the Insurance Company and the question was whether the Massachusetts Court (that suit having been first instituted) had jurisdiction, and it was held that it had not. The Court (Andrews, J.,) said: “We are of the opinion that in the attempt to execute an attachment in Massachusetts upon the agent of the corporation there, and without having acquired jurisdiction, the plaintiff must fail for the reason that the debtor, the insurance company, was in no just or — 55 — legal sense, a resident of Massachusetts, and had no domicil therein, and was not the agent of the plaintiff, and that in comtemplation of law the company and the debt were, at the time of the issuing of the attachment, in the State of New York, and not in the State of Massachusetts. In Everett vs. Walker (Conn. Mut. Life Ins. Co. garnishee) the the facts were: Everett was a citizen of Colorado. Mrs. Walker was a non-resident, though formerly a resident of Colorado, and was indebted to Everett on a promissory note executed by her jointly with her husband. The Insurance Company was a Connecticut corporation and had under a written designation of authority appointed the Superintendent of Insurance of the State of Colorado for the purposes of the service of process as a condition precedent to its right to do business in the State. The Insurance Company admitted an indebtedness to Mrs. Walker on account of the death of her husband and forwarded to her the money through their agent in Denver. So far as it is disclosed by the record there was no other tangible property in the State capable of seizure. Everett commenced suit, but was unable to obtain service on the principal defendant. In aid of his suit he procured a writ of attachment to issue and attempted to effectuate it by the service of the process of garnishment on the Superintendent of Insurance as the agent of the company. Judgment was entered so that upon the record it would appear there had been a recovery against the principal defendant. The insurance company asked to be discharged on the invalidity of the judgment, and that they were not legally charged by the service of garnishment on the Superintendent of Insurance. The Court (per Bissell, presiding Judge) said : “ We do not find any satisfactory authority which holds that where both the debtor and creditor are outside of the State, a suit may be commenced by attachment, and the debt seized. To escape the doctrine of Pennoyer vs. Neff and obtain a judgment against one without the limits of the sovereignty, an attachment must issue and be levied on the property of the non-resident person. To the extent — 56 — of the property seized judgment may go against the absent person, and he will be held to have had notice through the seizure of the res, and be bound by the judgment. The eases go this far. It is not easy to perceive how a case is brought within the scope of this exception when the only levy is that made by the service of the garnishment process upon the agent of the non-resident debtor. Nothing is seized, nothing is taken, nothing is within the jurisdiction of the Court, and a person out of the State is sought to be brought into Court where the service of a writ is upon another who is likewise absent. The circle never ends * * * * It is as impossible by judicial construction as by legislative enactment to declare a property out of the State, having a domicil with the creditor, or the debtor, is within the limits of á sovereignty for the purposes of a levy.” In case of the Central Trust Company of New York vs. The Chattanooga R. and C. R. Co., in the United States Circuit of Tennessee the facts in brief were : A citizen of Tennessee sought to attach by garnishment proceedings the wages of employees of the railroad company, which was incorporated and organized under the laws of Georgia, with its line of railway extending a short distance into the State of Tennessee. The laborers whose wages were sought to be attached were employed and paid in the State of Georgia. The garnishment was served upon the receiver, who was a citizen of Georgia, but who was appointed by the Courts both in Georgia and in Tennessee with power to operate the railroad, and he answered, showing wages due the non-resident. No personal service was had on the non-resident defendant. The Court said : “ Where both garnishee and the principal debtor are non-residents of this State, and the debt, such as wages due, is payable in the State of their residence, there is no property within the State, and the Courts of the State and of the United States are without jurisdiction to proceed by attachment, and a judgment based on such an attachment is an absolute nullity. And this rule applies fully to the case of wages due by a corporation of another State to its employees, a resident of such other State, under contract of employ — 57 — ment there made, and is not affected by the fact that a foreign railway corporation, without being incorporated in this State, extends its railroads into the State, and is subject to process on its local agents.” In Atchison, T. & S. F. R. Co. vs. Maggard, the plaintiff was a resident of Colorado. The defendant was a resident of Kansas and an employee of the garnishee railroad company, a corporation created by the State of Kansas, but was operating a part of its line in Colorado when the wages of his employee for work' performed in Kansas, and payable, there, was attached. The Court (per Reed, J.) said : “ As between the plaintiff and defendant, the debt, beyond question, followed the domicil of the plaintiff. That was its situs. But the indebtedness of the garnishee to the defendant did not follow the plaintiff. Its situs was by contract fixed where the services were performed and the payment to be made, and if such claim, or indebtedness, is property, in .contemplation of the statute, the situs of such property was in Kansas and not on Colorado. Care must be taken not to confound the indebtedness due from the defendant to the plaintiff with that due the defendant from the garnishee. They have no relation whatever.” The Court in this case review the Federal and State decisions and show that a large majority of the States have followed the principle that for purposes of jurisdiction in attachment proceedceedings, the situs of a debt is the domicil of a creditor, unless otherwise stipulated. An exception to this rule appears to be where the garnishee is a resident of the State where the proceedings are instituted, and is under the exclusive jurisdiction of that' State, and as a consequence under its power to determine for itself the rights and obligations arising from his contracts, and the mode of enforcing them; and possibly another exception is where a foreign corporation is doing business in a State and the debt arose in respect to such business, and where the corporation submits or subjects itself to the law of the State in the same manner and to the same extent in respect to such business as it would be bound to, were it a corpora — 58 — tion created by the State. We avoid expressing an opinion upon these cases. The proceeding here is not based upon any cause of action that originated in this State, nor to enforce any contract, or agreefnent entered into with any of its citizens, or in reference to any subject matter within the State. It is a case oí a non-resident defendant and a non-resident garnishee. True, the garnishee is a corporation doing business in this State, but the debt due the defendant arose from its contract for insurance made through its agency in South Carolina with the defendant, a citizen of that State, and concerning property situate there, arid was payable there under the custom of the company; and was payable there in accordance with the principle of law, that in the absence of a place fixed the contract a debt is payable at the domicil of the creditor (Central Trust Co. vs. Chattanooga R. R. Co.) and is not such a credit or property within this State, as will confer jurisdiction in this proceeding, even if service had been made upon the statutory officer. To take any other view would be to hold that it existed, had its situs, and was liable to attachment in every State in this Union where the defendant happened to have an officer, upon whom process could be served, as a condition precedent to its being permitted to do business in such State. That this is true is shown by the fact that an attempt was made to attach this very same debt by a creditor in the State of New York. Upon motion the Court there vacated the attachment upon the grounds we have just stated. We believe this view to be based upon reason and supported by authority ; and to be the only doctrine consistent with proper protection to citizens of other States. If it is not the situs of the defendant that gives jurisdiction, as is held in Nat. Fire Ins. Co. vs. Chambers, 53 N. J. Eq., and if it could be granted, that service was had upon the statutory officer, would still hold that the attachment in the case should be dissolved. The statute provides that before foreign insurance companies shall be permitted to do business in this State, they must appoint an agent upon whom process may be served. The condition has — 59 — relation to the permission given. The presumption is that only such jurisdiction is claimed .as is necessary to deal with litigation arising out of the business that is done under this permission J “ Statutes by which the jurisdiction is assumed should be construed strictly, and should not, unless their language is explicit, be held to confer jurisdiction beyond that which is required to enable the Courts to take cognizance of matters arising out of the business done within the State, or else to protect and enforce the rights of' the residents of their own State against foreign corporations.” Judge Wheeler in a case decided in Vermont in 1874 (Sawyer vs. North American Life Ins. Co., 46 Vt. 697), expressed very strongly the opinion that a statute providing for the appointment of an agent on whom a process might be served, ought not to be construed as intended to permit a non-resident to sue a foreign corporation for a cause of action arising outside of the State. He said that even assuming that the agent in that case had been appointed in obedience to the statute, the question still remained, what cases the statute was intended to reach. A statute is to be construed with reference to the old law, the mischief and the remedy. When this statute was passed the old law permitted the agents of any insurance company, foreign as well as domestic, to make contracts of insurance within the State under which causes of' action would accrue to our own people within the jurisdiction of the State Courts. The mischief was that the jurisdiction of the State Courts over these causes of action would be unavailing except upon voluntary appearance, for want of power in the Courts to compel appearance. The remedy provided was the requiring of’ any foreign insurance company making such contract to keep an agent in this State on whom service could be made. This would be a full remedy for all that mischief without requiring such companies to keep an agent here on whom any process-for any purpose could be served. ^ There could be no advantage obtained for the people of the State by providing means to give the Courts of the State jurisdiction over causes of action that occurred out of the State in favor of persons not citizens of the State against a — 60 — corporation existing out of the State ^ and it is not to be presumed that the Legislature intended to accomplish that purpose unless that is the necessary result of the enactment. It is more reasonable to suppose that the intention was to provide a method for obtaining jurisdiction over a defendant to a cause of action the Courts had jurisdiction of before, than that it was to provide means for obtaining jurisdiction of a course of action where none was had before, and of the parties also by the compulsory appointment of an agent. 12 Harvard Law Rev. Vol. 1. The statute is not so explicit as to be clearly intended to require a foreign insurance company to submit to suits in this State, having no relation to the business done within the State nor with one of her citizens, or to suits brought by persons that are citizens of the State where the corporation was organized or of some other foreign State. For this reason the attachment would have to be dismissed in this case. The contention of the plaintiff’s attorney that no hardship could follow by permitting the judgment, as a foreign jurisdiction would be bound to give full faith and credit to it, does not seem to be in accordance with the rulings of the adjudicated cases. We find that judgments rendered upon such facts as in the present case, have been in many jurisdictions held void and no bar to a suit to recover the same debt in the Courts of another State having unquestioned jurisdiction over it; Renier vs. Hurlburt, 50 N. W. Rep. 783; Missouri Pac. Ry. vs. Sharett, 43 Kan. 375. And by Courts assuming jurisdiction in similar cases, parties have been made to pay the same debt twice through no fault or negligence of their own; R. R. Co. vs. Chumley, 92 Ala. 317; Green vs. Bank, 25 Conn. 452; Smith vs. R. R. Co., 33 N. H. 337; Pierce vs. Ry. Co., 36 Wis. 283; R. R. Co. vs. Baker, 122 Ind. 433; McCarty vs. City of New Bedford, 4 Fed. Rep. 818; Cole vs. Cunningham, 133 U. S. 107. The rulings of the. Courts in these cases were based upon the reason that the previous judgments were rendered without the •Courts having jurisdiction of the person or subject matter, and — 61 — upon the now well settled principle of law that when the Courts-are without jurisdiction, the proceedings are an illegitimate assumption of power and no faith and credit or force and effect will be given them in any other jurisdiction. Such judgments cannot bo sustained under the provisions of the Constitution requiring that “full faith and credit shall be given in each State to the public-acts, records and judicial proceeding of other States,” and the act of Congress providing for the mode of • authenticating such acts, records and proceedings, and declaring that, when thus authenticated, “ they shall have such faith and credit given to them in every Court within the United States, as they have by law, or usage in the Courts of the States from which they are, or shall be taken.” Said Justice Miller in Pennoyer vs. Neff: "In the earlier cases it was supposed' that the act gave to all judgments the same effect in other States which they have by law where they have in the State where rendered. But this view was afterwards qualified, so to make the act applicable only where the Court rendering the judgment had jurisdiction of the parties and of the subject matter, and not to preclude an inquiry into the jurisdiction of the Court in which the judgment was rendered or the right of the State itself to exercise authority over the person or the subject matter.” McElmoyle vs. Cohen, 13 Peters 312; D’Arcy vs. Ketchum, 11 Howard, 165; Insurance Co. vs. French, 18 Howard 404; Thompson vs. Whiteman, 18 Wallace 457; Frankel vs. Scatterfield, 9 Houston 201. “ Such judgment can be taken advantage of at any time, and in any Court, where it is offered as a conclusive adjudication between the parties, and when collaterally attacked, may be disregarded and treated as a nullity and need not be adjudged to be such by a formal and direct proceeding for its vacation or reversal.”' Frankel vs. Scatterfield, supra. The contention that the garnishee cannot thus attack the judgment is not supported by any well considered case. In a suit by attachment the Court must acquire jurisdiction and proceed to — 62 — enter a judgment before it can pronounce any judgment against a party summoned as garnishee. If the previous proceedings are unauthorized and void, there is no sufficient basis to support the judgment against the garnishee. By it no rights would be divested and the garnishee would not be protected in the payment of a judgment under such circumstances. It would be regarded as shown by the authorities above cited, as a voluntary and not a compulsory payment, and the defendant might compel him to pay a second time. Black on Judgments § 260. In attachment proceedings, therefore, like the one we are now considering, it is the duty of the garnishee, and a duty he must perform at his peril, to see that the Court has jurisdiction.. Drake on Attachment §§ 691, 693; Shinn on Attachment §§ 660, 707, 708. It is, therefore, considered by the Court that upon the facts of this case as set forth in the record filed with the statement of the question reserved, the attachment should be vacated; and it is ordered that the opinion of this Court be certified to the Court •below and the record remanded. Cullen, J., dissented, but delivered no opinion.