« AnteriorContinuar »
said John Jay Philbrick, together with therein and the number of the manufactory George W. Allen and Charles B. Pendleton, where said cigars were made, and affixed a would give to him their four joint and sev- penalty for the noncompliance therewith; eral promissory notes for $2,500 each, two and the said promissory notes sued on are of the said notes payable in one year from two of the notes made and delivered to the the date thereof, and two payable in two said Horace R. Kelly in consideration of the years from the date thereof, he, the said promises and understandings and agreeHorace R. Kelly, would have cigars manu- ments aforesaid and are wholly void; all of factured in Key West, Florida, and in no which the said plaintiffs well knew at the other place, according to the terms of his time of the alleged transfer of the said notes contract with the Havana & Key West Cigar to them; and this the defendant is ready to Company, Limited; that the said contract verify.” referred to was a contract between the said The second and third pleas were so nearly Horace R. Kelly and one Max T. Rosen, identical with the first that they need not the president of the Havana & Key West be set forth. The pleas of February 2, 1903, Cigar Company, Limited, and in said con- set up the same defenses in substance,
, tract the said Horace R. Kelly bound him-coupled with the allegation that at the time self to have the said Horace R. Kelly Com- of the indorsement each of the indorsees pany, Limited, a corporation then existing, had notice of the contract alleged to have judicially dissolved, and after said dissolu- formed the consideration of the notes. All tion, together with himself and others, to these pleas were separately demurred to, organize a company under the laws of the special grounds being assigned to this efstate of West Virginia, to be known as the fect; that neither of the pleas stated facts Horace R. Kelly Company; that the said constituting any defense; that the considHorace R. Kelly Company, when so formed, eration of the notes sued on was the promise was to enter into an agreement with the of Horace R. Kelly to have cigars manufacHavana & Key West Cigar Company, Lim- tured in Key West, and neither of the pleas ited, whereby it, in its factory at Key West, alleged a breach of the promise that neither Florida, was to manufacture cigars and to of the pleas averred that the alleged proposed fill all orders for cigars secured by the said contract between the two companies in the Horace R. Kelly Company, provided such pleas stated, and alleged to be illegal, was ever orders should be approved by the president consummated or executed or anything done or manager of the Havana & Key West Cigar thereunder; that if cigars were manufacCompany, Limited. And it was then and tured in Key West, under the said contract there understood and agreed by and between between the said two companies in the said the said Horace R. Kelly and the said Max pleas stated, the defendant and his intestate T. Rosen, the president of the Havana & derived the same benefit, and received the Key West Cigar Company, Limited, that the same consideration for the said notes, cigars so manufactured as aforesaid by the whether said contract was legal or illegal. Havana & Key West Cigar Company, Lim- The demurrers were severally sustained, ited, at its factory at Key West, Florida, to the case went to judgment in favor of plainfill the orders for cigars secured by the said tiff, and was taken on error to the supreme Horace R. Kelly Company, were to be re-court of Florida. The errors assigned there, moved from said factory or place where said so far as these pleas were concerned, were cigars were made without being packed in simply that the trial court erred in susboxes on which should be stamped, indented, taining the demurrer in each instance. The burned, or impressed into each box, in a supreme court affirmed the judgment, wherelegible and durable manner, the number of upon a writ of error from this court was alcigars contained therein, and the number of lowed by the chief justice of that court, who the manufactory in which the said cigars certified, in substance, that the judgment had been manufactured. That at the time of denied “a title, right, privilege, or immunity the making of said contract and understand specially set up and claimed by the plaintiff ing and agreement between the said Horace in error under the statutes of the United R. Kelly and the said Max T. Rosen, presi- States of America." dent of the Havana & Key West Cigar Com- Six errors were assigned in this court; pany, Limited, the laws of the United States namely, that the state court erred in holdregulating the manufacture, removal, anding that the demurrer to the first plea of sale of cigars provided that, before any March 24, 1900, was properly sustained, and cigars were removed from any manufactory that the plea constituted no defense under or place where cigars were made, they$ 3397 of the Revised Statutes (U. S. Comp. should be packed in boxes, and that there Stat. 1901, p. 2222), and as to the second should be stamped, indented, burned, or im- plea and § 3393, Revised Statutes (U. S. pressed into each box in a legible and dura-Comp. Stat. 1901, p. 2220), and as to the ble manner, the number of cigars contained 'third plea and § 3390, Rvised Statutes (U. S. Comp. Stat. 1901, p. 2218); and in sosonal right under those sections to enforce holding as to the fourth plea, filed Febru- the repudiation of his notes, even although, ary 2, 1903, and § 3397, Revised Statutes; on grounds of public policy, they were illegal and as to the fifth plea of that date, and and void. § 3393, Revised Statutes; and as to the In Walworth v. Kneeland, 15 How. 348, sixth plea of that date, and § 3390, Revised 14 L. ed. 724, it was held, as correctly statStatutes.
ed in the headnotes: The case was submitted on motion to dis- “Where a case was decided in a state miss or affirm.
court against a party, who was ordered to
convey certain land, and he brought the case Messrs. R. H. Liggett and Macfarlane up to this court upon the ground that the & Glen for plaintiff in error.
contract for the conveyance of the land was Messrs. H. Bisbee and George C. Be-contrary to the laws of the United States, dell for defendant in error.
this is not enough to give jurisdiction to
this court under the 25th section of the Mr. Chief Justice Fuller delivered the judiciary act. opinion of the court:
"The state court decided against him upThe only ground on which our jurisdic- on the ground that the opposite party was tion can be maintained is that defendant innocent of all design to contravene the laws specially set up or claimed some title, right, of the United States. privilege, or immunity under a statute of “But even if the state court had enforced the United States, which was denied by the a contract, which was fraudulent and void, state court. The supreme court of Florida the losing party has no right which he can gave no opinion, and, therefore, we are left enforce in this court, which cannot therefore to conjecture as to the grounds on which the take jurisdiction over the case.' pleas were held to be bad; but if the judg- And Mr. Chief Justice Taney said: "But ment rested on two grounds, one involving if it had been otherwise, and the state court a Federal question and the other not, or if had committed so gross an error as to say it does not appear on which of two grounds that a contract forbidden by an act of Conthe judgment was based, and the ground gress, or against its policy, was not frauduindependent of a Federal question is suffi- lent and void, and that it might be encient in itself to sustain it, this court will forced in a court of justice, it would not not take jurisdiction. Dibble v. Bellingham follow that this writ of error could be mainBay Land Co. 163 U. S. 63, 41 L. ed. 72, tained. In order to bring himself within 16 Sup. Ct. Rep. 939; Klinger v. Missouri, the 25th section of the act of 1789 [1 Stat.
1 13 Wall. 257, 20 L. ed. 635; Johnson v. at L. 85, chap. 20], he must show that he Risk, 137 U. S. 300, 34 L. ed. 683, 11 Sup. claimed some right, some interest, which the Ct. Rep. 111. And we are not inclined to law recognizes and protects, and which was hold that if, in the view of the state court, denied to him in the state court. But this the promise of Kelly to manufacture cigars act of Congress certainly gives him no right at Key West was the consideration of the to protection from the consequences of a connotes, and had been performed, and the mak-tract made in violation of law. Such a coners could not defend on the ground that it tract, it is true, would not be enforced was contemplated between Kelly and Rosen against him in a court of justice; not on that the cigars should be removed without account of his own rights or merits, but compliance with the revenue laws, a Federal from the want of merits and good conscience question was decided in sustaining the in the party asking the aid of the court. demurrers to the pleas.
But to support this writ of error, he must But, apart from that, no title, right, privi-claim a right which, if well founded, he lege, or immunity under a statute of the would be able to assert in a court of justice, United States, within the intent and mean- upon its own merits, and by its own ing of g 709 of the Revised Statutes, 1 was strength.” p. 353, L. ed. p. 726. specially set up or claimed by defendant, The certificate on the allowance of the and decided against.
writ of error could not, in itself, confer juSections 3390, 3393, and 3397 of the Re- risdiction on this court (Fullerton v. Texas, vised Statutes are regulations to secure the 196 U. S. 192, 194, 25 Sup. Ct. Rep. 221, 49 collection of the taxes imposed by chapter 7, L. ed. 443), and the result is that the writ title 35, and defendant could derive no per- of error must be dismissed.
1 U. S. Comp. St. 1901, p. 575.
(198 U. S. 215) ISAAC N. HARRIS, Plff. in Err., ion delivered at the time of entering the v.
judgment now under review is to be found B. BALK.
in 130 N. O. 381, 41 N. E. 940. And see,
also, 132 N. C. 10, 43 S. E. 477. Judgments—full faith and credit-jurisdic
The facts are as follows: The plaintiff in tion over garnishee temporarily within error, Harris, was a resident of North Carostate-judgment against garnishee as bar lina at the time of the commencement of this to action on the debt-duty of garnishee action, in 1896, and prior to that time was to give notice to principal debtor.
indebted to the defendant in error, Balk,
also a resident of North Carolina, in the sum 1. The judgment of a state court, if that court of $180, for money borrowed from Balk by
bad jurisdiction to render it, is entitled to Harris during the year 1896, which Harris the same full faith and credit in the courts of verbally promised to repay, but there was another state that it has in the state where no written evidence of the obligation. Dur
rendered, as a valid domestic judgment. * 2. The temporary presence of the garnishee ing the year above mentioned one Jacob Ep
within the state gives a court of that state stein, a resident of Baltimore, in the state jurisdiction to render judgment against him of Maryland, asserted that Balk was indebtin the garnishment proceedings upon per- ed to him in the sum of over $300. In Ausonal service of process within the state, if, gust, 1896, Harris visited Baltimore for the during such temporary presence in the state, the principal debtor could have sued him purpose of purchasing merchandise, and there to recover the debt, and the laws of the while he was in that city temporarily on state permit the garnishment of a debtor of August 6, 1896, Epstein caused to be issued the principal debtor. †
out of a proper court in Baltimore a foreign 8. The consent of a garnishee to a judgment or nonresident writ of attachment against
impounding his debt to the principal debtor Balk, attaching the debt due Balk from Hardoes not make the payment under the judg: ris, which writ the sheriff at Baltimore laid ment voluntary, where he was absolutely without defense, so as to prevent him from in the hands of Harris, with a summons to pleading such payment in bar to an action on appear in the court at a day named. With the debt.
that attachment, a writ of summons and a 4. The duty of the garnishee to give notice of short declaration against Balk (as provided
the garnishment proceedings to the principal by the Maryland statute) were also delivered debtor is discharged by pleading the judg: to the sheriff, and by him set up at the courtment therein in bar to an action on the deht house door, as required by the law of Marywhile there then remained nearly a year in which the principal debtor might" litigate the i land. Before the return day of the attachquestion of his liability in the court which ment writ Harris left Baltimore, and rerendered the judgment.
turned to his home in North Carolina. He
did not contest the garnishee process, which (No. 191.]
was issued to garnish the debt which Harris
owed Balk. After his return Harris made Argued April 4, 1905. Decided May 8, 1905. an affidavit on August 11, 1896, that he
owed Balk $180, and stated that the amount IN N ERROR to the Supreme Court of the had been attached by Epstein, of Baltimore,
State of North Carolina to review a judg- and by his counsel in the Maryland proceedment which affirmed the judgment of the Su-ing Harris consented therein to an order of perior Court of Beaufort County, in that condemnation against him as such garnishee state, refusing to give any effect to a judg- for $180, the amount of his debt to Balk. ment of a Maryland court in garnishment Judgment was thereafter entered against the proceedings, pleaded in bar in an action on garnishee, and in favor of the plaintiff, Epthe debt. Reversed and remanded for fur- stein, for $180. After the entry of the garther proceedings.
nishee judgment, condemning the $180 in the See same case below, 130 N. C. 381, 41 S. hands of the garnishee, Harris paid the E. 940.
amount of the judgment to one Warren, an
attorney of Epstein, residing in North CaroStatement by Mr. Justice Peckham:
lina. On August 11, 1896, Balk commenced The plaintiff in error brings the case here an action against Harris before a justice of in order to review the judgment of the su- the peace in North Carolina, to recover the preme court of North Carolina, affirming a $180 which he averred Harris owed him. judgment of a lower court against him for The plaintiff in error, by way of answer to $180, with interest, as stated therein. The the suit, pleaded in bar the recovery of the case has been several times before the su- Maryland judgment and his payment therepreme court of that state, and is reported in of, and contended that it was conclusive 122 N. C. 64, 45 L. R. A. 257, 30 S. E. 318, against the defendant in error in this action, again, 124 N. C. 467, 45 L. R. A. 260, 70 because that judgment was a valid judgment Am. St. Rep. 606, 32 S. E. 799. The opin in Maryland, and was therefore entitled to •Ed. Note.-For cases in point, see vol. 30, Cent. Dig. Judgment, $$ 1443-1503.
fEd. Note. For cases in point, see vol. 24, Cent. Dig. Garnishment, § 144; Vol. 40, Cent Dig. Process, $ 70.
full faith and credit in the courts of North | entitled to full faith and credit in the courts Carolina. This contention was not allowed of North Carolina. by the trial court, and judgment was accord- The cases holding that the state court obingly entered against Harris for the amount tains no jurisdiction over the garnishee if of his indebtedness to Balk, and that judg- he be but temporarily within the state proment was affirmed by the supreme court of ceed upon the theory that the situs of the North Carolina. The ground of such judg- debt is at the domicil either of the creditor ment was that the Maryland court obtained or of the debtor, and that it does not follow no jurisdiction to attach or garnish the debt the debtor in his casual or temporary jourdue from Harris to Balk, because Harris was ney into another state, and the garnishee has but temporarily in the state, and the situs no possession of any property or credit of of the debt was in North Carolina.
the principal debtor in the foreign state.
We regard the contention of the plaintiff Messrs. George W. S. Musgrave and in error as the correct one. The authorities Sylvan Hayes Lauchheimer for plaintiff in in the various state courts upon this ques
tion are not at all in harmony. They have Mr. John H. Small for defendant in er- been collected by counsel, and will be found
in their respective briefs, and it is not necessary to here enlarge upon them.
Attachment is the creature of the local Mr. Justice Peckham, after making the foregoing statement, delivered the opinion of law; that is, unless there is a law of the the court:
state providing for and permitting the atThe state court of North Carolina has re- tachment, it cannot be levied there. If there fused to give any effect in this action to the be a law of the state providing for the at
tachment of the debt, then, if the garnishee Maryland judgment; and the Federal question is whether it did not thereby refuse the be found in that state, and process be perfull faith and credit to such judgment which sonally served upon him therein, we think is required by the Federal Constitution. If the court thereby acquires jurisdiction over the Maryland court had jurisdiction to him, and can garnish the debt due from him award it, the judgment is valid and entitled to the debtor of the plaintiff, and condemn to the same full faith and credit in North it, provided the garnishee could himself be Carolina that it has in Maryland as a valid sued by his creditor in that state. We do domestic judgment.
not see how the question of jurisdiction vel The defendant in error contends that the non can properly be made to depend upon Maryland court obtained no jurisdiction to the so-called original situs of the debt, or award the judgment of condemnation, be- upon the character of the stay of the garcause the garnishee, although at the time in nishee, whether temporary or permanent, in the state of Maryland, and personally served the state where the attachment is issued.
. with process therein, was a nonresident of
Power over the person of the garnishee conthat state, only casually or temporarily where the writ issues. Blackestone v. Mil
fers jurisdiction on the courts of the state within its boundaries; that the situs of the debt due from Harris, the garnishee, to the ler, 188 U. S. 189–206, 47 L. ed. 439-445, 23 defendant in error herein, was in North Car- Sup. Ct. Rep. 277. If, while temporarily olina, and did not accompany Harris to there, his creditor might sue him there and Maryland; that, consequently, Harris,
recover the debt, then he is liable to process though within the state of Maryland, had of garnishment, no matter where the situs of not possession of any property of Balk, and the debt was originally. We do not see the v the Maryland state court therefore obtained materiality of the expression “situs of the no jurisdiction over any property of Balk debt,” when used in connection with attachin the attachment proceedings, and the con- ment proceedings. If by situs is meant the sent of Harris to the entry of the judgment place of the creation of the debt, that fact is was immaterial. The plaintiff in error, on
immaterial. If it be meant that the oblithe contrary, insists that, though the gar- gation to pay the debt can only be enforced nishee were but temporarily in Maryland, at the situs thus fixed, we think it plainly yet the laws of that state provide for an at- untrue. The obligation of the debtor to pay tachment of this nature if the debtor, the his debt clings to and accompanies him garnishee, is found in the state, and the wherever he goes. He is as much bound to court obtains jurisdiction over him by the pay his debt in a foreign state when therein service of process therein; that the judg- sued upon his obligation by his creditor, as ment, condemning the debt from Harris to he was in the state where the debt was conBalk, was a valid judgment, provided Balk tracted. We speak of ordinary debts, such could himself have sued Harris for the debt as the one in this case. It would be no dein Maryland. This, it is asserted, he could fense to such suit for the debtor to plead have done, and the judgment was therefore that he was only in the foreign state casual
ly or temporarily. His obligation to pay | 72 Md. 1, 5, 6, 18 Atl. 962. Section 34 of would be the same whether he was there in the same Maryland Code provides also that that way or with an intention to remain. It this judgment of condemnation against the is nothing but the obligation to pay which is garnishee, or payment by him of such judggarnished or attached. This obligation can ment, is pleadable in bar to an action be enforced by the courts of the foreign state brought against him by the defendant in the after personal service of process therein, attachment suit for or concerning the propjust as well as by the courts of the domicil erty or credits so condemned. of the debtor. If the debtor leave the foreign It thus appears that Balk could have sued state without appearing, a judgment by de- Harris in Maryland to recover his debt, notfault may be entered, upon which execution withstanding the temporar character of may issue, or the judgment may be sued up-Harris' stay there; it also appears that the on in any other state where the debtor might municipal law of Maryland permits the debt
be found. In such case the situs is unim-or of the principal debtor to be garnished, ✓portant. It is not a question of possession and therefore if the court of the state where
in the foreign state, for possession cannot the garnishee is found obtains jurisdiction be taken of a debt or of the obligation to pay over him, through the service of process upit, as tangible property might be taken pos. on him within the state, then the judgment session of. Notice to the debtor (garnishee) entered is a valid judgment. See Minor on of the commencement of the suit, and noticey Conflict of Laws, § 125, where the various not to pay to his creditor, is all that can be theories regarding the subject are stated and given, whether the garnishee be a mere cas- many of the authorities cited. He there ual and temporary comer, or a resident of cites many cases to prove the correctness of the state where the attachment is laid. His the theory of the validity of the judgment obligation to pay to his creditor is thereby where the municipal law permits the debtor arrested, and a lien created upon the debt it to be garnished, although his being within self. Cahoon v. Morgan, 38 Vt. 236; Na- the state is but temporary. See pp. 289, tional F. Ins. Co. v. Chambers, 53 N. J. Eq. 290. This is the doctrine which is also 468, 483, 32 Atl. 663. We can see no reason adopted in Morgan v. Neville, 74 Pa. 52, by why the attachment could not be thus laid, the supreme court of Pennsylvania, per Ag. provided the creditor of the garnishee could new, J., in delivering the opinion of that himself sue in that state, and its laws per- court. The same principle is held in Wyeth mitted the attachment.
Hardware & Mfg. Co. v. H. F. Lang & Co. There can be no doubt that Balk, as a citi- | 127 Mo. 242, 247, 27 L. R. A. 651, 48 Am. zen of the state of North Carolina, had the St. Rep. 626, 29 S. W. 1010; in Lancashire right to sue Harris in Maryland to recover Ins. Co. v. Corbetts, 165 Ill. 592, 36 L. R. A. the debt which Harris owed him. Being a 640, 56 Am. St. Rep. 275, 46 N. E. 631; and citizen of North Carolina, he was entitled to in Harvey v. Great Northern R. Co. 50 Minn. all the privileges and immunities of citizens 405, 406, 407, 17 L. R. A. 84, 52 N. W. 905; of the several states, one of which is the and to the same effect is Embree v. Hanna, right to institute actions in the courts of an- 5 Johns. 101; also Savin v. Bond, 57 Md. other state. The law of Maryland provides 228, where the court held that the attachfor the attachment of credits in a case like ment was properly served upon a party in this. See 88 8 and 10 of article 9 of the the District of Columbia while he was temCode of Public General Laws of Maryland, porarily there; that as his debt to the appel. which provide that, upon the proper facts lant was payable wherever he was found, being shown (as stated in the article), the and process had been served upon him in the attachment may be sued out against lands, District of Columbia, the supreme court of tenements, goods, and credits of the debtor. the District had unquestioned jurisdiction to Section 10 particularly provides that "any render judgment, and the same having been kind of property or credits belonging to the paid, there was no error in granting the defendant, in the plaintiff's own hands, or in prayer of the appellee that such judgment the hands of any one else, may be attached; was conclusive. The case in 138 N. Y. 209, and credits may be attached which shall not 20 L. R. A. 118, 34 Am. St. Rep. 448, 33 N. then be due." Sections 11, 12, and 13 of the E. 938 (Douglass v. Phenix Ins. Co.) is not above-mentioned article provide the general contrary to this doctrine. The question practice for levying the attachment, and the there was not as to the temporary character proceedings subsequent thereto. Where of the presence of the garnishee in the state money or credits are attached, the inchoate of Massachusetts, but, as the garnishee was lien attaches to the fund or credits when the a foreign corporation, it was held that it attachment is laid in the hands of the gar- was not within the state of Massachusetts so nishee, and the judgment condemning the as to be liable to attachment by the service amount in his hands becomes a personal upon an agent of the company within that judgment against him. Buschman v. Hanna,'state. The general principle laid down in