Malsby v. Simmons Manufacturing Co. , 191 Ga. 477 ( 1941 )

The petition in an action against a non-resident corporation, for judgment in the amount of the plaintiff's demand and for receivership and other equitable relief, was subject to demurrer for lack of jurisdiction in the county where the suit was brought.

No. 13494. JANUARY 16, 1941. Harry I. Malsby instituted an action in Spalding superior court against the Simmons Manufacturing Company, a corporation chartered under the laws of Ohio. The petition alleged substantially the following. Defendant is indebted to petitioner in the sum of $9253.58, and has no office, place of business, or agent, in the State of Georgia upon whom service may be perfected, but is doing business throughout the State, said business being in the nature of merchandise sold to various parties within the State of Georgia, said merchandise being shipped by defendant to said parties on open account, and such parties are constantly indebted to defendant in various sums. Owing to the large number of debtors throughout the State, petitioner is without an adequate remedy at law in the premises, and can only obtain such relief through the aid of a court of equity in appointing a receiver to marshal the assets of the defendant within the confines of the State, and impound the funds due by the various parties to defendant, and thereby avoid a multiplicity of actions. The prayers were (a) for judgment in the above amount; (b) for service by publication; (c) that the assets within the State of Georgia be marshaled and a receiver be appointed, and that a court of equity administer the same; and (d) for general relief. The defendant appeared specially and moved to dismiss the action on the ground that it appears that the court has no jurisdiction of the person of the defendant, it being a non-resident corporation and having no office or place of business or agent within the State of Georgia; and that there is no res within the jurisdiction of the court upon which the court can act or by which it could acquire a jurisdiction in rem in the proceeding. The exception is to a judgment sustaining the motion and dismissing the action. An action was instituted in Spalding superior court by an alleged creditor against a non-resident corporation, seeking judgment for the amount of the plaintiff's demand, appointment of a receiver, and marshaling the assets of the defendant, to enable the plaintiff to collect his debt. It was alleged in the petition: "That the defendant has no office, place of business, or agent, in the State of Georgia upon whom service may be perfected, but is doing business throughoutthe State of Georgia, said business being in the nature of merchandise sold to various parties within the State of Georgia, said merchandise being shipped by the defendant to said parties on open account, and such parties are constantly indebted to the defendant in various sums." Held:

1. Construing the petition, as it must be, most strongly against the plaintiff, the allegation of sales "throughout the State of Georgia," considered with its context, is not an allegation that any such sales were made in Spalding County, or that the situs of any debt by purchasers from defendant was in Spalding County. See Harris v. Palmore, 74 Ga. 273; Lowe v. Mann, 74 Ga. 387; Waters v. Donaldson, 184 Ga. 450 (191 S.E. 429); Hale v. Turner, 185 Ga. 516 (2) (195 S.E. 423), and cit. This result is not opposed to the provisions of the Code, § 81-205, which declares: "Where any non-resident or person unknown shall claim or own title to or an interest, present or contingent, in any real or personal property in this State, service on such non-resident or unknown owner or claimant may be made by publication in cases affecting such property where proceedings are brought. . . Where a non-resident or person unknown has or may have or may claim a present, future, or contingent interest in any property in this State."

2. There being no allegation of property of the non-resident defendant having a situs in Spalding County, the petition was subject to general demurrer on the ground that it appeared from the allegations that the court was without jurisdiction to render a judgment in personam against defendant or in rem as against property subject to seizure by the court. The case differs fromPendley v. Tumlin, 181 Ga. 808 (184 S.E. 283), Forrester v. Forrester, 155 Ga. 722 (118 S.E. 273, 29 A.L.R. 1363), and Grimmett v. Barnwell, 184 Ga. 461 (192 S.E. 191, 116 A.L.R. 257), cited by the plaintiff, in which it appeared that the situs of the property in question sought to be condemned was in the county where the suit was brought.

3. The court did not err in sustaining the motion and in dismissing the action.

Judgment affirmed. All the Justices concur.