Green v. Snyder

114 Tenn. 100

• Court: Tennessee Supreme Court
• Decided: December 15, 1904
• Status: Published

Opinion

MR. Justice Wilkes

delivered the opinion of the Court.

This is an action for damages for personal injuries. The injuries were alleged to have been inflicted December 27, Í900, and the suit was brought May 12, 1902, by the issuance and levy of an original attachment in lieu of personal service of process, and upon the ground that Martin Snyder, trustee, was a nonresident of Tennessee.

Defendant pleaded in abatement that, while he did not reside in Tennessee, yet he had, when the injury occurred and when the suit was brought, and without interruption, but continuously between those dates, an office and place of business in Dickson county, Tennessee; that the suit grew out of the business carried on in that county; that he had at said place of business superintendents, agents, clerks, bookkeepers, and representatives, which fact was well known to the plaintiff; and that service could at any time have been made upon him through these agents; and hence no action by attachment would lie.

The plaintiff demurred to this plea, and the demurrer was sustained. Defendant sought to appeal, but this was denied him.

Defendant then pleaded to the action, and among other defenses, set up the statute of limitations, proceeding upon the theory that plaintiff might at any time have brought his suit, and had personal service upon any of bis agents, and, failing to do so within one year after the injury, the action was barred.

We are of opinion that under the provisions of our statute (Shannon’s Code, secs. 4516, 4542-4546), whenever a corporation, company, or individual has any office or agency or resident director in any county other than that in which the chief officer or principal resides, the service of process may be made upon any agent or clerk in all actions brought against such corporation, company, or individual; and this has been construed to extend to its business and transactions generally. Toppins v. Railroad, 5 Lea, 604; Railroad v. Walker, 9 Lea, 481.

Attachment of property is not the ordinary mode of obtaining jurisdiction, but it is extraordinary, and not to be resorted to when personal service can be had in order to obtain such jurisdiction.

Of course, attachment may be resorted to upon any of the grounds pointed out in the statute for its issuance, but we are referring; to it simply and alone as a means of executing process and bringing a person into court; that is, when it is in lieu of personal service to obtain jurisdiction. Shannon’s Code, sec. 5284.

This being so, the demuirer to the plea was improperly sustained.

If the fact was as stated in the plea, then the court could not acquire jurisdiction of the defendant by an attachment, but only by personal service; just as no attachment would lie against a resident upon whom personal service could be had. Turcott v. Railroad, 101 Tenn., 105, 45 S. W., 1067, 40 L. E. A., 768, 70 Am. St. Rep., 661.

In addition if the facts stated in the plea are true, the action of plaintiff is barred by the statute of limitation, and ho recovery could be had over defendant’s plea of the statute

The judgment of the court below, sustaining the de-, murrer, is overruled, and the cause remanded for issue upon the plea and further proceedings.

Appellee will pay the costs of appeal.