Merchants' Laclede Bank v. Troy Grocery , 144 Ala. 605 ( 1905 )

HARALSON, J.

Section 5242, Revised Statutes of the U. S., among other things provides, “No attachment, injunction or execution, shall be issued against such association (national banks) or its property before final judgment in any suit, action or proceeding, in any state, county or municipal court.”

Whatever opinion a state court might‘entertain as to a correct construction of this provision of the statute of the United States, is immaterial, since these courts are bound by the construction placed upon the act by the supreme court of the United States. That court, in the case of Pacific N. Bank v. Mixter, 124 U. S. 721, ha$ plainly and pointedly constructed the act to be “a prohibition upon all attachments against national banks under the authority of 'the state courts.”

Chief Justice Waite, delivering the opinion for the court says: “It stands now, as it did originally, as the permanent law of the land, that attachments shall not issue from state courts against national banks, and writes into all state attachment laws an exception in favor of national banks. Since the act of 1873 all the attachment laws of the state must be read as if they contain a provision in express terms that they were not to apply to suits against a national bank. * * * * In our opinion the effect of the act of Congress is to deny the state remedy altogether so far as suits against national banks are concerned, and in this way it operates as well on the courts of the United States as on those of the states. Although the provision was evidently made to secure equality among the general creditors in the division of the proceeds of the property of an insolvent bank, its operation is by no means confined to cases of actual or contemplated insolvency. The remedy is taken away altogether and cannot be used under any circumstances.”

So it is held, that the state courts is without jurisdiction to entertain such a case. Jurisdiction cannot be conferred even by consent of the parties, and the want of it cannot be waived by any adjudications. In either case the judgment- of the court would be a nullity and the attachment set aside and declared void. — Karthaus v. N. C. & St. L. Ry., 37 So. Rep. 268; Rosenheimer v. S. N. Bank, 46 S. W. Rep. 1026; Garner v. S. N. Bank, 66 Federal Reports, 369; 5 Cyc. 600, and authorities there cited.

We have been referred to the case of Norris v. M. N. Bank, 30 Ill. App. 34, which holds that this prohibition of the Federal Statute against the issuance of the attachment in a state court against a national bank before final judgment, is a personal privilege which may be waived by appearance of the defendant. But it is contrary to the weight of authority, and cannot be followed.

The court erred in refusing to dissolve the attachment. The grounds stated in the motion therefor were admitted on its trial to be true. It is unnecessary to- consider any other question raised in the record.

Reversed and remanded.

Dowdell, Anderson and Denson, JJ., concurring.