Morrow v. Fossick ( 1879 )

Cooper, J.,

delivered the opinion of the court.

On the 11th of September, 1876, the complainant, as a creditor of F. L. Fossick, filed this bill against his debtor as a non-resident of the State, and one Woodruff, to attach the indebtedness of Woodruff to Fossick, and subject it to the satisfaction of his debt. The debt was attached, the amount admitted by Wood-ruff and paid into court. On the 26th of September the defendant Fossick entered his appearance and was allowed time to answer. On the 11th of November the Chancellor, for some reason not appearing nor apparent, vacated the entry of appearance and allowed Fossick to file a plea in abatement to the effect that the fund attached was not his property, but the property of a firm composed of himself and his two sons, F. L. Fossick, jr., and G. E. Fossick, doing business in the State of Alabama. Thereupon the complainant obtained leave of the court, and on the 16th of February, 1877, after Woodruff had paid the money •into court, filed an amended and supplemental bill against the members of the firm, charging that a large part if not all of the fund attached belonged to the original defendant and debtor, and asking “ that the affairs of said firm, if firm it be, be settled” in the Chancery Court, and the debtor’s interest be ascertained and appropriated to the satisfaction of complainant’s debt. The bill further prayed that the fund in controversy be held subject to the further ordei’s of the court, and, if proper, that another attachment issue to be levied on the individual interest of the debtor in said fund. The defendants, the Fossicks, each for himself entered a motion to dismiss the amended and supplemental bill because it showed “that the court had no jurisdiction of the person of the •said defendants, or any one of them.” The Chancellor sustained these motions and dismissed the bill.

When a complainant has preferred his bill and is advised that the same does not contain such material facts, or make all such persons parties as are necessary to enable the court to do complete justice, he ■may alter it by inserting new matter, or by adding sucb persons as shall be deemed necessary parties, or both. And although it is the practice to call a bill thus altered an amended bill, the amendment is in fact esteemed but as a continuation of the original bill, and as forming part of it, for both the original •and amended bill constitute but one record. 1 Dan. Ch. Pr., 402; Vere v. Glynn, 2 Dick., 441; Catton v. Carlisle, 5 Mad., 427; Hurd v. Everett, 1 Paige, 124; Wilkinson v. Fowlkes, 9 Hare, 198, 594; Bradley v. Dibrell, 3 Heis., 522; Wilson v. Beadle, 2 Head, 512. The object of the original bill is to subject to the ■satisfaction of the complainant's debt the interest of ■the debtor in the fund upon the supposition that he is entitled to the whole of it. The object of the amended bill is the same, still asserting that the defendant debtor is entitled to the whole fund, but, upon -an alleged claim by the other defendant's, asking that their claim be inquired into, the interest of the debtor ascertained and subjected. In this view the new bill is, beyond all question, a mere amendment as to the original debtor, and a motion by him to dismiss on the merits would not lie. If, too, the amended bill can be considered as still asserting the debtor’s right to the fund, and disputing the question of partnership between the defendants, a motion to dismiss on .the merits would not lie by any of the defendants:

But the motion to dismiss is not rested on the want of jurisdiction over the subject matter of the liti— gation, but because the court had no jurisdiction of the person. So far as the original debtor.- is .concerned, this motion is clearly not well taken. He is. in court by virtue of the original attachment, and the payment of the fund attached into court, both bills expressly asserting that he has the whole interest therein. As to the two other defendants, the jurisdiction of the court over their person depends upon the Code, sec. 4311, sub-secs. 4 and 5. Sub-sec. 4 is: “Bills against non-residents may .be filed in the district in which the subject of the suit or any material part thereof is.” The subject of this suit being the money attached, is impounded in the court in which the bill is filed, and in the very suit in which the bill sought to be dismissed is an amended pleading. Sub-sec. 5 is: “Whenever attachment of property is allowed in lieu of personal service of process, the bill may be filed in the county or district in which the property, or any material part thereof sought to be attached is found at the commencement of the suit.” The attachment already sued out as to the debtor is sufficient to give the court personal jurisdiction as to him under the new bill, which is merely an amendment of the original bill so far as he is concerned. Moreover, the fund being already in court,, the prayer that it be held subject to the order of the court probably dispenses with a formal attachment, which could not be levied without permission of the court. If this impounding is equivalent to attachment, the jurisdiction of the court over the person of all of the defendants is secured, and certainly possession of the subject matter of the suit gives such jurisdiction.

In this view the question of real difficulty in this cause is not now before us, and that is whether a court of chancery of this State can so far take jurisdiction of a foreign partnership as to ascertain whether one of its members has such an interest in funds attached by his creditor, but claimed by the firm, as may be subjected to the satisfaction of the creditor’s debt. The right of the creditor to seize the firm property, either by execution or attachment, for the debt of the member of- the firm, and sell or appropriate the debtor-partner’s interest, and, ordinarily, to file a bill in advance of sale to ascertain that interest, is conceded. Haskins v. Everett, 4 Sneed, 531; 1 Sto. Eq. Jur., sec. 677. The. objection is that the court has not sufficient control over the partners, their books and business, to effectually exercise the jurisdiction in the case of a foreign partnership. But the court has control of the fund in controversy, which it can appropriate at any time to the satisfaction of the creditor’s demand, unless the proper accounts are furnished, and proper facilities tendered for taking the account. Of course it would be unreasonable to require the partnership books to be produced, or the partners to be brought to this State. But I see no difficulty which may not readily be overcome in assuming the jurisdiction, if the creditor chooses, after the disclosure by answer to which he is entitled, to risk the expense of having the books examined by experts, and taking the necessary proof, with access to the books, at the place of business of the firm. Theoretically, the subject seems to bristle with difficulties, while practically there would be little more difficulty than would attend a similar account of a domestic-partnership. The probability is that in the majority of cases the partnership interest of the member would-be fairly stated in the answers, or be shown by the-balance sheets produced, and the litigation terminated. At any rate, I am unwilling to concede that a court of chancery cannot successfully grapple with the supposed difficulties, and I am unwilling to deprive a creditor of any means afforded by the law to obtain satisfaction of his debt from the property of a reluctant debtor. I am still more unwilling to force a home creditor to resort to a foreign forum for the recovery 6f his debt, when the case presented is one over which the court would clearly have jurisdiction if the partnership were domestic, though located in a distant county from that in which the suit is pending.

The decree of the Chancellor will be reversed, and' the cause remanded for further proceedings.