Bank of the Valley v. Gettinger , 3 W. Va. 309 ( 1869 )

Bereshire, J.

This is an action of assumpsit instituted by the defendant in error against the plaintiff in error in the circuit court of Berkeley county.

The plaintiff, in the court below, upon affidavits averring that the defendant was a non resident of the State and had estate and debts due-it in Berkeley county, sued out sundry attachments which were levied or served on some of the debtors of the defendant as garnishees, who resided in said county.

From a bill of exceptions, taken bj7 the defendant, it appears that, on the first calling of the cause, the defendant appeared and moved the court to dismiss the summons or remand the cause to rules on the ground that the summons could not be sued out in said county, and had not been served on the defendant according to law, because it had been proceeded against by order of publication and attachment when the defendant was not a foreign but a domestic corporation, and could not, therefore, be proceeded against as a non resident. But the court held that the defendant ivas a foreign corporation and was própei’ly proceeded against as a non resident, and that the process was duly executed by order of publication, and accordingly overruled the motion to dismiss or. remand to rules.

The objection to the service of process as indicated in the bill- of exceptions was because thecircuit court had no jurisdiction of the cause, by reason of the defendants beingadom&stic corporation. It being the purpose, therefore, of the defendant to raise the question of the jurisdiction of the court in the premises I think it was not proper or competent for it to do so in this indirect way; as by section 19 of chapter 171 of the Code of 1860, p. 711, it is provided that “ when the declaration or bill shows on its face proper matter for the jurisdiction of the court, no exception for the want of such jurisdiction shall be allowed unless taken by plea in abatement,” &c.

This motion, therefore, was properly overruled, whether the defendant is to be regarded as a foreign corporation or not.

' The defendant subsequently filed a special plea in bar, alleging that prior to the issuing and levy of the attachments, the defendant had made a deed of trust and assignment to Henry M. Brent, as trustee and assignee, of all its estate, both real and personal, including the debts due from the debtors of the defendant who had been summoned as garnishees in this ease, for the benefit of and distribution among all its creditors, and that by reason of which trust and assignment the debts aforesaid passed to the said Brent for the use and purpose aforesaid.

This plea sought to raise the question of priority of lien on the debts so attached, which could only be properly done by the petition of said Brent or the creditors claiming under and entitled to the benefit of the trust and assignment, and the plea, therefore, was clearly bad.

There was a special replication filed to this plea by the plaintiff, denying the authority of the defendant to make such trust and assignment, and also denying all notice and knowledge of the trust and assignment on the part of the debtors of the defendant at the time the process and attachment was served on them.. And without any formal issue or other pleadings, so far as the record discloses, a jury was em-panneled and sworn and found a verdict for the plaintiff for the amount of his claim, subject to the opinion of the court, upon the law arising on the facts agreed in the case. The court accordingly rendered a judgment on the agreed facts in favor of the plaintiff for the amount of the verdict and costs and continued the cause for further proceedings against tlie persons summoned as garnishees. .

As the facts agreed were intended to raise the same questions of law sought to be raised by the plea and motion to dismiss or remand tbe cause to rules, which, as we have seen, were not and could not be properly raised in that mode, it was no error, as it seems to me, to render the judgment on the agreed facts,, which is now complained of, and I think the same should be affirmed with costs here and damages.

After this judgment was rendered, however, the trustee and assignee, Henry M. Brent, filed his petition in the cause, setting up the assignment of the debts so attached in the hands of the garnishees, and claiming the same for the benefit of |the creditors of the defendant.

This petition is still pending and the questions of title and priority of lien involved in it would properly only arise on the hearing of said petition. But as it is desired by all the parties interested in the question that it should be decided now for the guidance of the circuit court in the subsequent proceedings in the cause, I will now proceed to its consideration.

The precise legal proposition we have to determine is : does a voluntary assignment made in Virginia of a debt due from a citizen and resident of this State to a resident of the former State pass the debt to the assignee at the time of the assignment, so as to defeat a subsequent attaching creditor of the assignor in this State, whose attachment is issued and served on the debtor of the assignor after the assignment but before such debtor had notice of it ?

It may be assumed, I think, as a well settled principle in this country, notwithstanding the strong doubts expressed by some eminent jurists, that involuntary or coercive assignments do not operate beyond the territory and jurisdiction of the. State or sovereign under whose laws such compulsory assignment was made.

But on the other hand the doctrine seems to be equally well established, that the bona fide and voluntai’y assignment of personal property and choses in' action where-ever situated or found, pass to the assignee at the time of the assigment, and consequently will have priority over subsequent leinors, although neither such leinors nor tbe debtors (in case of a chose in action) had notice of the assignment a.t the time the Hen was created.

This is clearly the general rule, and will prevail unless it-comes in conflict with some positive or customary law of the State or place where the property or choses in action may be located or found. Story on Conflict of Laws, p. 658, sec. 411; Black vs. Zacharie & Co., 3 Howard, 514; Means vs. Hapgood, 19 Pick., 105; 1 Rob. Prac. (new), 153-6 ; Wynn vs. Wyatt’s adm’r, 11 Leigh, 584; Hickman vs. Lacky, 6 Grat., 210.

The reason of the rule seems to be that, as all the creditors and purchasers of the assignor stand on the same footing in point of merit and could claim no preference over each other on that ground, it naturally follows in such a case that he who is first in time shall be first in priority.

Was the assignment in the present case voluntary or compulsory ? It seems to me it must be regarded as a voluntary act and assignment on the-part of the assignor; for although authorized it certainly was not compelled by the law to make it. Unless, therefore, there is something in the law of the State to prevent the operation and effect of the assignment here it must, according to the established doctrine, prevail over that-of the lien of the attachment in controversy.

So far as the choses in action are concerned I can see nothing in the letter or policy of our laws that would'invalidate the assignment here. The 5th section o'f chapter 118 of the Code, p. 566, would only avoid it as to real estate and goods and chattels (if any) by reason of its not being recorded in Berkeley county; And I -think it may be plainly implied from the omission to include choses in action in this section, that notice to the debtor (which is required by the laws of Connecticut and perhaps some other States) of the assignment of the debt due from him to the assignor was not deemed at all necessary or essential to the validity of the assignment so far at least as creditors and purchasers are concerned.

The assignment, therefore, being voluutary and bona jkh and not in conflict with the laws of this State, I think it passed the debts in controversy to the assignee who thereby acquired priority over the attaching creditors.

The case, therefore, must be remanded to the circuit court for further proceedings against the garnishees, and on the petition of the assignee filed after the judgment was rendered, on the facts agreed.

The other members of the court concurred,