Swedish-American National Bank v. Bleecker

CANTY, J.

The defendant, a resident of North Dakota, insured his house against loss by fire in the garnishee insurance company, a foreign corporation organized in England. The house was situated in North Dakota, and was burned while so covered with said insurance. Thereupon the plaintiff, a resident of this state, brought an action against defendant to recover an indebtedness due from the latter to the former, and instituted garnishment proceedings against the insurance company, which was doing business in this state. The garnishee appeared, and disclosed that it owed the defendant the insurance money due on said loss, amounting to $800. The defendant could not be found in the state, and the summons in the main action was served on him by publication. The garnishee summons was served on the garnishee by delivering copies thereof to the insurance commissioner, pursuant to Laws 1895, c. 175, § 77. The plaintiff moved for judgment on the disclosure of the garnishee. The defendant appeared specially, and moved that the proceedings be dismissed on the ground that the. court had no jurisdiction. Both motions were heard together. Defendant’s motion was denied, and plaintiff’s was granted. From the judgment entered thereon in plaintiff’s favor, defendant appeals.

This is a proceeding in rem. Aultman, Miller & Co. v. Markley, 61 Minn. 404, 63 N. W. 1078. The res is the indebtedness due from the garnishee to the defendant.

Appellant contends that the court had no jurisdiction, and the judgment is void, because the situs of the debt was not in this state, and therefore the courts of this state could not seize or condemn it. There is a conflict of authority as to whether, under the circumstances, the debt has a situs in this state. In the discussion of this question, we must keep in mind two simple principles: First, as between different states or sovereignties, the situs of the debt is at the domicile of the creditor (Wharton, Confl. Laws [2d Ed.] §§ 359, 363; Story, Confl. Laws [8th Ed.] § 399; Brown, Jur. § 150); second, statutes and the custom of London may, and often do, for the purposes of attachment or garnishment at the suit of a third person, give the debt a situs also at the domicile of the debtor.

Respondent contends that the debtor (the garnishee herein) has a domicile in this state. Said section 77 provides:

“No foreign insurance company shall be so admitted and authorized to do business until: * * Third. It shall by a duly executed instrument filed in his office constitute and appoint the insurance commissioner or his successor its true and lawful attorney upon whom all lawful processes in any action or legal proceedings against it may be served, a.nd therein shall agree that any lawful process against it which may be served upon its said attorney shall be of the same force and validity as if served upon the company, and that the authority thereof shall continue in force irrevocable so long as any liability of the company remains outstanding in this state.”

The garnishee has filed such a stipulation, has established local agencies, and has been insuring property in this state. This did not, in our opinion, give the garnishee a domicile in this state for all purposes, or bring into this state the situs of debts which it owes elsewhere by reason of business transacted elsewhere. Neither the creditor nor the debtor resided in this state; none of the transactions out of which the indebtedness arose took place in this state; and the indebtedness was not payable in this state. Under these circumstances, the debt has not a situs in this state. Reimers v. Seatco Mnfg. Co., 37 U. S. App. 426, 17 C. C. A. 228, and 70 Fed. 573; Douglass v. Phoenix Ins. Co., 138 N. Y. 209, 33 N. E. 938; Renier v. Hurlbut, 81 Wis. 24, 50 N. W. 783; Louisville & N. R. Co. v. Dooley, 78 Ala. 524; Wright v. Chicago, B. & Q. R. Co., 19 Neb. 175, 27 N. W. 90; Keating v. American R. Co., 32 Mo. App. 293. In Green v. Farmers & C. Bank, 25 Conn. 452, Tingley v. Bateman, 10 Mass. 343, and Lawrence v. Smith, 45 N. H. 533, it is held that a debtor who is only temporarily in the state cannot be charged as a trustee or garnishee. But we need not now consider whether or not these decisions should be followed. The garnishee herein is not in the state temporarily. It is in the state permanently, or, for the purposes of this case, it is not in the state at all.

Respondent relies on Harvey v. Great Northern Ry. Co., 50 Minn. 405, 52 N. W. 905. That case is not at all parallel. The report of that case does not fully disclose the facts as they appear in the court’s findings. One Zellar was employed as a conductor on the Great Northern Railway in running and operating its train from Minot, North Dakota, to Glasgow, Montana, and during the time of his employment resided at Glasgow. On October 23, 1891, he ceased to be so employed, and immediately thereafter changed his residence to Minot. Thereafter, on November 23, 1891, attachment proceedings were instituted against him in Montana by a resident of that state, and the wages due him from the railway company for his last month’s services were attached, and process was served on him by publication. Thereafter, on December 4, 1891, he changed his residence to Minnesota, and assigned his claim for wages to Harvey, who commenced an action in Minnesota against the railway company for the amount of the claim. The railway company was incorporated under the laws of Mimesota; but, under the laws of Montana, a railway company doing business in that state could be served with process by serving the same on its ticket agent. This court held that the Montana court had jurisdiction to seize the debt, and ordered proceedings stayed in the action in this state until the determination of the attachment proceedings in Montana. Clearly this debt had a situs in Montana. The debt grew out of a Montana transaction between Zellar and the railway company, and was incurred in that state. For the purposes of that transaction, the railway company had a domicile in Montana, and the fact that Zellar subsequently left the state did not destroy such domicile of the railway company as regards that transaction, or destroy the situs of the debt in Montana for the purposes of attachment in that state.

It is true that this defendant might have brought an action in this state against this insurance company to recover for this loss, and might have obtained service by serving the summons on the insurance commissioner. But this does not prove that this debt has always had a situs in this state. In the first place, that action would be in personam, not in rem; and, for the purposes of such an action, it is immaterial where the situs of the debt is. In the next place, the creditor, by his voluntary act, may give the debt a situs also at some place other than that of his domicile. He may, so to speak, take the debt with him for the purpose of bringing a suit upon it. But a third person claiming to be a creditor of such creditor cannot do this. Such a stranger has no power to change the situs of the debt, or to give it a situs at a place where it would not otherwise have it. In our opinion, the debt in question had no situs in this state, and the court below had no jurisdiction.

The judgment appealed from is therefore reversed, and the action remanded, with directions to dismiss the same.

A petition for reargument having been filed the following opinion was filed on June 17,1898:

CANTY, J.

On a motion for a reargument, respondent calls our attention again to the fact that Wyeth H. & M. Co. v. Lang, 127 Mo. 242, 29 S. W. 1010, follows Harvey v. Great Northern Ry. Co., 50 Minn. 405, 52 N. W. 905, and overrules Keating v. American R. Co., 32 Mo. App. 293, cited by us in the opinion herein. It is true that the Wyeth case purports to overrule the Keating case; but it merely overrules a dictum in the latter case, which dictum is to the effect that, when a debt is made payable at a certain place it has no situs at any other place. In our opinion, each of those cases was correctly' decided on the facts.

The Keating case is similar to this case. Neither the defendant nor the garnishee resided in Missouri. The garnishee was an Illinois corporation, which did business also in Missouri and Texas. The defendant was a resident of Texas, where he was employed by the garnishee; and the plaintiff attempted to procure service on him by publication, and to garnish his wages. The plaintiff and defendant in the Wyeth case were both residents of Missouri. The latter had commenced a number of actions against the former in the state of Kansas, had garnished in those actions residents of Kansas who were debtors of the former, and had obtained service on the former by publication. The Missouri action was brought to restrain the prosecution of the Kansas actions on the ground that the courts of Kansas had no jurisdiction. Of course, the Kansas courts had jurisdiction, and the Missouri action could not be maintained.

The statement, in the opinion in the latter case, that the debt may be attached as the property of the creditor wherever he might maintain an action to recover it, was merely a dictum, which is true as a general rule; but, as we hold in this case, there are some exceptions to that rule. The garnishee in this case is an English corporation, which may be doing business in every state in the Union, and also in England, Ireland, Scotland, Canada, India, Australia, and a score of other countries. If respondent’s position is correct, the debt here in question has at one and the same time a situs in all of those states and countries in which the corporation is doing business, and may be seized by attachment or garnishment in any of them.

The petition for a reargument is denied.