Renier v. Hurlbut

14 L.R.A. 562, 50 N.W. 783, 81 Wis. 24, 1891 Wisc. LEXIS 271

Opinion

Oassoday, J.

During all the times mentioned in the foregoing statement the plaintiff, Mrs. Renier, was domiciled in and a resident of this state. The St. Paul company mentioned, claiming to be a creditor of hers for a large amount, commenced an action against her, not in any of the courts of Wisconsin, but in the superior court for Cook county, lili-' nois, and garnished the Boston company, as a foreign corporation, by serving garnishee process upon its agent lo cated at Chicago. Mrs. Renier did not appear in that action nor in such garnishee proceedings, and no process or notice of any hind was ever served upon her therein otherwise than by publication, as mentioned. It is claimed that such publication was insufficient, but for the purpose of this appeal it is assumed that the statutes of Illinois were in all respects complied with. Upon the facts stated the law is well settled by the supreme court of the United States to the effect that the Chicago court obtained no jurisdiction to render any personal judgment against Mrs. Renier. St. Clair v. Cox, 106 U. S. 350; Pennoyer v. Neff, 95 U. S. 714; Thompson v. Whitman, 18 Wall. 457; Public Works v. Columbia College, 17 Wall. 521. To the same effect are the decisions of this court. Witt v. Meyer, 69 Wis. 595; Smith v. Grady, 68 Wis. 215. This being so, it is very obvious that the most that could be accomplished in the Chicago court was to reach property, assets, or credits belonging to Mrs. Renier and within the jurisdiction of that court. This is apparent from the authorities cited. If there was, therefore, a want of jurisdiction in that court as to such property, assets, or credits, then the proceedings therein were null and void, and could not operate to abate or defeat the suit at bar.

The question recurs whether, at the time of such garnishment, Mrs. Renier was the owner of any property, assets, or credits within such jurisdiction of the Chicago court. There is no pretense that at the time the garnishee papers were served upon the Chicago agent of the Boston company he had in his possession or under his control any tangible property belonging to Mrs. Rewwr. The extent of the claim is that at that time the Boston company was indebted to Mrs. Renier upon the judgment recovered in the circuit court for Brown county, mentioned in the foregoing statement, and hence that such indebtedness was attached or reached by the service of the garnishee papers upon the Boston company’s agent in Chicago. If such contention can be maintained, then it is obvious that the St. Paul company might have attached such indebtedness by such garnishee proceedings in any state or city in the Union where the Boston company happened to have an office and an agent. This would necessarily be upon the theory that such indebtedness to Mrs. Benier was ambulatory, following each of the several agents of the Boston company, and, for the purposes of garnishment, having a situs with and in the office of each and all of such agents, wherever they happened to be located. If such is the law, it is certainly important that all should know it.

As indicated, none of the parties to the proceedings in the Chicago court were residents of Illinois. Proceedings by garnishment are in their nature very much like the old trustee process. In such a case in Massachusetts, at an early day, the court refused to take jurisdiction, for the reason that all the parties were nonresidents. Tingley v. Bateman, 10 Mass. 346. It was there said, in behalf of the court, that “ the summoning of a trustee is like a process in rem. A chose in action is thereby arrested and made to answer the debt of the principal. The person entitled by the contract or duty of the supposed trustee is thus summoned by the arrest of this species of effects. These are, however, to be considered, for this purpose, as local, and as remaining at the residence of the debtor or person intrusted for the principal; and his rights in this respect are not to be considered as following the person of the debtor to any place where he may be transiently found, to be there taken at the will of a third person, within a jurisdiction where neither the original creditor nor debtor resides.” To the same effect are Sawyer v. Thompson, 24 N. H. 510; Bowen v. Pope, 125 Ill. 28. It has also been repeatedly held in Massachusetts that a trustee residing in another state, though temporarily therein when service is made upon him, is not liable to the trustee process, and especially is this so where the principal defendant is also a nonresident. Ray v. Underwood, 3 Pick. 302; Hart v. Anthony, 15 Pick. 445; Nye v. Liscombe, 21 Pick. 263. To the same effect are Lawrence v. Smith, 45 N. H. 533; Green v. F. & C. Bank, 25 Conn. 452; Lovejoy v. Albee, 33 Me. 414. The only exception to this rule seems to be where tangible •property belonging to the principal defendant has been actually seized within the state, or the contract or promise is to be performed within the state. Ibid.; Sawyer v. Thompson, 24 N. H. 510; Young v. Ross, 31 N. H. 201; Lawrence v. Smith, 45 N. H. 533; Guillander v. Howell, 35 N. Y. 657; Lovejoy v. Albee, 33 Me. 414. Some of the authorities cited and the views thus expressed were considered and sustained by Mr. Justice Orton in Commercial Nat. Bank v. C., M. & St. P. R. Co. 45 Wis. 172.

The courts of Hassachusetts have gone to the extent of holding that a resident of that state, having contracted to deliver goods at a place in another state, could nob be charged in foreign attachment as the trustee of the person to whom the goods were thus contracted. Clark v. Brewer, 6 Gray, 320. In Danforth v. Penny, 3 Met. 564, it was held that a foreign corporation, having no specific articles of property in its possession within that state belonging to the principal defendant to whom it was indebted, could not be charged by trustee process, notwithstanding many of - its members and officers resided there, and its books and records were kept there. ' To the same effect is Gold v. Housatonic R. Co. 1 Gray, 424, where it was held that a foreign railroad corporation could not be charged by the trustee process, although in possession of a railroad in Hassachusetts under leases from the proprietors thereof; and also Towle v. Wilder, 57 Vt. 622; Louisville & N. R. Co. v. Dooley, 78 Ala. 524; Ala. G. S. R. Co. v. Chumbey, 92 Ala. 317; Western R. Co. v. Thornton, 60 Ga. 300; Bates v. C., M. & St. P. R. Co. 60 Wis. 296; Sutherland v. Second Nat. Bank, 78 Ky. 250. In Smith v. Mut. Life Ins. Co. 14 Allen, 336, it was held that the courts of Massachusetts would not entertain jurisdiction of a bill in equity, brought by a citizen of Alabama against such foreign insurance corporation, to restore him to his rights under a life policy, notwithstanding such foreign corporation transacted business therein, and had a resident agent therein, upon whom all lawful process against the company might be served. The theory upon which foreign attachments and foreign garnishments are sustained is that the -principal defendant is beyond the reach of process, but that his property is within the reach of such process and may, therefore, be seized thereon. Penn. R. Co. v. Pennock, 51 Pa. St. 244.

As indicated, the proceedings in the Chicago court were not based upon any cause of action originating in the state of Illinois, nor to enforce any contract or engagement entered into with reference to any subject matter within that state, but merely for the purpose of reaching property belonging to Mrs. Penier, having no tangible existence in that state. The authorities cited, as well as others which might be cited, pretty clearly show that the Chicago court obtained no jurisdiction over that property. Central R. & B. Co. v. Carr, 76 Ala. 388; Brauser v. New England F. Ins. Co. 21 Wis. 506. Nor was it the purpose of such proceedings to reach property belonging to the Boston company. Its indebtedness to Mrs. Penier was in no sense its property — but rather an indication of the absence of its property. In speaking of the situs of ehoses in action for the purposes of taxation, Mr. "Justice Field observed that “ to call debts property of the debtors is simply to misuse terms. All the property there can be in the nature of things in debts of corporations belongs to the creditors to whom they are payable, and follows their domicile wherever that may be. Their debts can have no locality separate from the parties to whom they are due.” State Tax on Foreign-Held Bonds, 15 Wall. 320. This principle has received recent sanction in this court. State ex rel. Dwinnell v. Gaylord, 73 Wis. 325.

It is obvious from what has been said that, if the indebtedness of the Boston company to Mrs. Benier had any situs outside of Wisconsin for the purposes of garnishment, it was at the home office of that company in Massachusetts ; certainly not with the respective agents of that company, wherever located in the several states. But, as observed, that indebtedness was in the form of a judgment recovered by Mrs. Benier in a court of her domicile in Wisconsin. The statute of this state required the Boston company to pay that judgment to Mrs. Benier within the time therein specified. Sec. 1974, R. S.¹ . Such payment, or its equivalent, was absolutely essential to the continuance of business in the state. Ibid. Such being the rules of law, and the facts being as stated, we must hold that the situs of the indebtedness in question for the purposes of garnishment at the time of the commencement of the proceedings in the Chicago court was only in Wisconsin, where Mrs. Benier resided. This view is sustained by numerous cases cited by counsel for the plaintiff, among which are Wallace v. McConnell, 13 Pet. 136; Rio Grande R. Co. v. Gomila, 132 U. S. 485; American Bank v. Rollins, 99 Mass. 313 ; Trowbridge v. Means, 5 Ark. 135; S. C. 39 Am. Dec. 368 ; Shinn v. Zimmerman, 23 N. J. Law, 150; S. C. 55 Am. Dec. 260; American Bank v. Snow, 9 R. I. 11; Wood v. Lake, 13 Wis. 84. It follows that the proceedings in the Chicago court did not operate as a bar or abatement of this action.

By the Court.— The judgment of the circuit court is reversed, and the cause remanded with direction to enter judgment in favor of the plaintiff and against the defendants for the proper amount remaining due and unpaid on the former judgment, with interest and costs.