Sessoms Grocery Co. v. International Sugar Feed Co.

66 So. 479, 188 Ala. 232, 1914 Ala. LEXIS 305

• Court: Supreme Court of Alabama
• Decided: November 7, 1914
• Status: Published

Opinion

de GRAFFENRIED, J.

The International Sugar Feed Company is a non-resident. The Sessoms Grocery Company is-a resident of this state. Both parties appear to be merchants, and the Sessoms Grocery Company claims that it possesses a right of action for damages against the International Sugar Feed Company. If so, it must sue the International Sugar Feed Company in the state of its residence unless, without a fraud upon the law, it can, either by process of attachment or in some other legal way, obtain service — or that -which is regarded as tantamount to service — upon said Sugar Feed Company in this State.

Our courts will not, either by process of attachment or by summons, lend jurisdiction to those who seek to obtain it by a fraud upon the law. Our courts are open to litigants, but those who come into them must come into them in an open fashion. Those who undertake to enter them through a fraud upon the law will be denied admittance. — Ex parte Hurn, 92 Ala. 102, 9 South. 515, 13 L. R. A. 120, 25 Am. St. Rep. 23; Cunningham & Son v. Baker, Peterson & Co., 104 Ala. 160, 16 South. 68, 53 Am. St. Rep. 27; Steele v. Boyd, 6 Leigh (Va.) 547, 29 Am. Dec. 218; Steele v. Bates, 2 Aikens (Vt.) 338, 16 Am. Dec. 720; F. & M. Construction Co. v. Fitzgerald, 137 U. S. 98, 11 Sup. Ct. 36, 34 L. Ed. 608; Van Horn v. Great Western Mfg. Co., 37 Kan. 523, 15 Pac. 562; Pomroy v. Parmless, 9 Iowa, 140, 74 Am. Dec. 328.

We think that the pleadings in this case show that the relations of the Sessoms Grocery Company to the car of foodstuff upon which the attachment was levied were such as to pseclude it from levying its attachment upon it. This car of foodstuff was ordered by the Grocery Company from the Sugar Feed Company ostensibly with the purpose of paying for it in cash upon its arrival at Andalusia. The car was shipped at the request of appellant upon “order notify,” and we take it that this means that the car was shipped with bill of lading attached to a draft for the agreed price of the foodstuff, and that, when the car reached Andalusia, the title to its contents still resided in appellee. It may be that appellee solicited this order from the appellant, but it is plain from all of the pleadings that when the car was shipped, it was the understanding on the part of the appellee— from all that had been said and done pending the negotiations — that the draft, upon the arrival of the car in Andalusia, would be paid in cash. The appellant must have known that, upon the faith of that specific understanding, this car was shipped, pursuant to. its order, by appellee from the state of Tennessee to Andalusia, Ala. Instead of paying the draft, however, the appellant attached the contents of the car. The appellant cannot be permitted to use this breach of faith on its part as the means of litigating in this state with appellee the validity of its alleged right of action against the appellee.

(3) The appearance of the appellee in this case was for the purpose of challenging the jurisdiction of the court, and its appearance did not waive or impair that right. In other words, the appellee did not, by anything it did, voluntarily submit itself to the jurisdiction of the court, and it cannot be held to have waived the rights which it set up in its plea.—Grigg, Adm’r v. Gilmer, 54 Ala. 425.

The rulings of the trial court were in accordance with the above views, and the judgment of the court below is affirmed.

Affirmed.

McClellan, Sayre, and Gardner, JJ., concur.