« ΠροηγούμενηΣυνέχεια »
where said cigars were made, and affixed a penalty for the noncompliance therewith; and the said promissory notes sued on are two of the notes made and delivered to the said Horace R. Kelly in consideration of the promises and understandings and agreements aforesaid and are wholly void; all of which the said plaintiffs well knew at the time of the alleged transfer of the said notes to them; and this the defendant is ready to verify."
The second and third pleas were so nearly identical with the first that they need not be set forth. The pleas of February 2, 1903, set up the same defenses in substance, coupled with the allegation that at the time of the indorsement each of the indorsees had notice of the contract alleged to have formed the consideration of the notes. All these pleas were separately demurred to, special grounds being assigned to this effect; that neither of the pleas stated facts constituting any defense; that the consideration of the notes sued on was the promise of Horace R. Kelly to have cigars manufactured in Key West, and neither of the pleas alleged a breach of the promise that neither of the pleas averred that the alleged proposed contract between the two companies in the pleas stated, and alleged to be illegal, was ever consummated or executed or anything done thereunder; that if cigars were manufactured in Key West, under the said contract between the said two companies in the said pleas stated, the defendant and his intestate derived the same benefit, and received the same consideration consideration for the said notes, whether said contract was legal or illegal.
said John Jay Philbrick, together with | therein and the number of the manufactory George W. Allen and Charles B. Pendleton, would give to him their four joint and several promissory notes for $2,500 each, two of the said notes payable in one year from the date thereof, and two payable in two years from the date thereof, he, the said Horace R. Kelly, would have cigars manufactured in Key West, Florida, and in no other place, according to the terms of his contract with the Havana & Key West Cigar Company, Limited; that the said contract referred to was a contract between the said Horace R. Kelly and one Max T. Rosen, the president of the Havana & Key West Cigar Company, Limited, and in said contract the said Horace R. Kelly bound himself to have the said Horace R. Kelly Company, Limited, a corporation then existing, judicially dissolved, and after said dissolution, together with himself and others, to organize a company under the laws of the state of West Virginia, to be known as the Horace R. Kelly Company; that the said Horace R. Kelly Company, when so formed, was to enter into an agreement with the Havana & Key West Cigar Company, Limited, whereby it, in its factory at Key West, Florida, was to manufacture cigars and to fill all orders for cigars secured by the said Horace R. Kelly Company, provided such orders should be approved by the president or manager of the Havana & Key West Cigar Company, Limited. And it was then and there understood and agreed by and between the said Horace R. Kelly and the said Max T. Rosen, the president of the Havana & Key West Cigar Company, Limited, that the cigars so manufactured as aforesaid by the Havana & Key West Cigar Company, Limited, at its factory at Key West, Florida, to fill the orders for cigars secured by the said Horace R. Kelly Company, were to be removed from said factory or place where said cigars were made without being packed in boxes on which should be stamped, indented, burned, or impressed into each box, in a legible and durable manner, the number of cigars contained therein, and the number of the manufactory in which the said cigars had been manufactured. That at the time of the making of said contract and understanding and agreement between the said Horace R. Kelly and the said Max T. Rosen, president of the Havana & Key West Cigar Company, Limited, the laws of the United States regulating the manufacture, removal, and sale of cigars provided that, before any cigars were removed from any manufactory or place where cigars were made, they should be packed in boxes, and that there should be stamped, indented, burned, or impressed into each box in a legible and durable manner, the number of cigars contained
The demurrers were severally sustained, the case went to judgment in favor of plaintiff, and was taken on error to the supreme court of Florida. The errors assigned there, so far as these pleas were concerned, were simply that the trial court erred in sustaining the demurrer in each instance. The supreme court affirmed the judgment, whereupon a writ of error from this court was allowed by the chief justice of that court, who certified, in substance, that the judgment denied "a title, right, privilege, or immunity specially set up and claimed by the plaintiff in error under the statutes of the United States of America."
Six errors were assigned in this court; namely, that the state court erred in holding that the demurrer to the first plea of March 24, 1900, was properly sustained, and that the plea constituted no defense under § 3397 of the Revised Statutes (U. S. Comp. Stat. 1901, p. 2222), and as to the second plea and § 3393, Revised Statutes (U. S. Comp. Stat. 1901, p. 2220), and as to the third plea and § 3390, Rvised Statutes (U.
S. Comp. Stat. 1901, p. 2218); and in so holding as to the fourth plea, filed February 2, 1903, and § 3397, Revised Statutes; and as to the fifth plea of that date, and 3393, Revised Statutes; and as to the sixth plea of that date, and § 3390, Revised Statutes.
The case was submitted on motion to dismiss or affirm.
sonal right under those sections to enforce the repudiation of his notes, even although, on grounds of public policy, they were illegal and void.
In Walworth v. Kneeland, 15 How. 348, 14 L. ed. 724, it was held, as correctly stated in the headnotes:
"Where a case was decided in a state court against a party, who was ordered to convey certain land, and he brought the case
Messrs. R. H. Liggett and Macfarlane up to this court upon the ground that the & Glen for plaintiff in error. contract for the conveyance of the land was
Messrs. H. Bisbee and George C. Be- contrary to the laws of the United States, dell for defendant in error.
this is not enough to give jurisdiction to this court under the 25th section of the
Mr. Chief Justice Fuller delivered the judiciary act. opinion of the court:
The only ground on which our jurisdiction can be maintained is that defendant specially set up or claimed some title, right, privilege, or immunity under a statute of the United States, which was denied by the state court. The supreme court of Florida gave no opinion, and, therefore, we are left to conjecture as to the grounds on which the pleas were held to be bad; but if the judgment rested on two grounds, one involving a Federal question and the other not, or if it does not appear on which of two grounds the judgment was based, and the ground independent of a Federal question is sufficient in itself to sustain it, this court will not take jurisdiction. Dibble v. Bellingham Bay Land Co. 163 U. S. 63, 41 L. ed. 72, 16 Sup. Ct. Rep. 939; Klinger v. Missouri, 13 Wall. 257, 20 L. ed. 635; Johnson v. Risk, 137 U. S. 300, 34 L. ed. 683, 11 Sup. Ct. Rep. 111. And we are not inclined to hold that if, in the view of the state court, the promise of Kelly to manufacture cigars at Key West was the consideration of the notes, and had been performed, and the makers could not defend on the ground that it was contemplated between Kelly and Rosen that the cigars should be removed without compliance with the revenue laws, a Federal question was decided in sustaining the demurrers to the pleas.
But, apart from that, no title, right, privilege, or immunity under a statute of the United States, within the intent and meaning of 709 of the Revised Statutes,1 was § specially set up or claimed by defendant, and decided against.
Sections 3390, 3393, and 3397 of the Revised Statutes are regulations to secure the collection of the taxes imposed by chapter 7, title 35, and defendant could derive no per1 U. S. Comp. St. 1901, p. 575.
"The state court decided against him upon the ground that the opposite party was innocent of all design to contravene the laws of the United States.
"But even if the state court had enforced a contract, which was fraudulent and void, the losing party has no right which he can enforce in this court, which cannot therefore take jurisdiction over the case."
And Mr. Chief Justice Taney said: "But if it had been otherwise, and the state court had committed so gross an error as to say that a contract forbidden by an act of Congress, or against its policy, was not fraudulent and void, and that it might be enforced in a court of justice, it would not follow that this writ of error could be maintained. In order to bring himself within the 25th section of the act of 1789 [1 Stat. at L. 85, chap. 20], he must show that he claimed some right, some interest, which the law recognizes and protects, and which was denied to him in the state court. But this act of Congress certainly gives him no right to protection from the consequences of a contract made in violation of law. Such a contract, it is true, would not be enforced against him in a court of justice; not on account of his own rights or merits, but from the want of merits and good conscience in the party asking the aid of the court. But to support this writ of error, he must claim a right which, if well founded, he would be able to assert in a court of justice, upon its own merits, and by its own strength." p. 353, L. ed. p. 726.
The certificate on the allowance of the writ of error could not, in itself, confer jurisdiction on this court (Fullerton v. Texas, 196 U. S. 192, 194, 25 Sup. Ct. Rep. 221, 49 L. ed. 443), and the result is that the writ of error must be dismissed.
(198 U. S. 215)
ion delivered at the time of entering the judgment now under review is to be found. in 130 N. C. 381, 41 N. E. 940. And see, also, 132 N. C. 10, 43 S. E. 477.
Judgments-full faith and credit-jurisdicThe facts are as follows: The plaintiff in tion over garnishee temporarily within error, Harris, was a resident of North Carostate—judgment against garnishee as barlina at the time of the commencement of this
to action on the debt-duty of garnishee
1. The judgment of a state court, if that court
The consent of a garnishee to a judgment impounding his debt to the principal debtor does not make the payment under the judgment voluntary, where he was absolutely without defense, so as to prevent him from pleading such payment in bar to an action on
4. The duty of the garnishee to give notice of the garnishment proceedings to the principal debtor is discharged by pleading the judg ment therein in bar to an action on the debt
while there then remained nearly a year in which the principal debtor might litigate the question of his liability in the court which rendered the judgment.
Argued April 4, 1905. Decided May 8, 1905.
N ERROR to the Supreme Court of the State of North Carolina to review a judgment which affirmed the judgment of the Superior Court of Beaufort County, in that state, refusing to give any effect to a judgment of a Maryland court in garnishment proceedings, pleaded in bar in an action on the debt. Reversed and remanded for further proceedings.
action, in 1896, and prior to that time was indebted to the defendant in error, Balk, also a resident of North Carolina, in the sum of $180, for money borrowed from Balk by Harris during the year 1896, which Harris verbally promised to repay, but there was no written evidence of the obligation. During the year above mentioned one Jacob Epstein, a resident of Baltimore, in the state of Maryland, asserted that Balk was indebted to him in the sum of over $300. In August, 1896, Harris visited Baltimore for the purpose of purchasing merchandise, and while he was in that city temporarily on August 6, 1896, Epstein caused to be issued out of a proper court in Baltimore a foreign or nonresident writ of attachment against Balk, attaching the debt due Balk from Harris, which writ the sheriff at Baltimore laid in the hands of Harris, with a summons to appear in the court at a day named. With that attachment, a writ of summons and a short declaration against Balk (as provided by the Maryland statute) were also delivered to the sheriff, and by him set up at the courthouse door, as required by the law of Maryland. Before the return day of the attachment writ Harris left Baltimore, and returned to his home in North Carolina. He did not contest the garnishee process, which was issued to garnish the debt which Harris owed Balk. After his return Harris made an affidavit on August 11, 1896, that he owed Balk $180, and stated that the amount had been attached by Epstein, of Baltimore, and by his counsel in the Maryland proceeding Harris consented therein to an order of condemnation against him as such garnishee for $180, the amount of his debt to Balk. Judgment was thereafter entered against the garnishee, and in favor of the plaintiff, Epstein, for $180. After the entry of the garnishee judgment, condemning the $180 in the
See same case below, 130 N. C. 381, 41 S. hands of the garnishee, Harris paid the E. 940.
Statement by Mr. Justice Peckham: The plaintiff in error brings the case here in order to review the judgment of the supreme court of North Carolina, affirming a judgment of a lower court against him for $180, with interest, as stated therein. The case has been several times before the supreme court of that state, and is reported in 122 N. C. 64, 45 L. R. A. 257, 30 S. E. 318, again, 124 N. C. 467, 45 L. R. A. 260, 70 Am. St. Rep. 606, 32 S. E. 799. The opin
amount of the judgment to one Warren, an attorney of Epstein, residing in North Carolina.
On August 11, 1896, Balk commenced an action against Harris before a justice of the peace in North Carolina, to recover the $180 which he averred Harris owed him. The plaintiff in error, by way of answer to the suit, pleaded in bar the recovery of the Maryland judgment and his payment thereof, and contended that it was conclusive against the defendant in error in this action, because that judgment was a valid judgment in Maryland, and was therefore entitled to
*Ed. Note.-For cases in point, see vol. 30, Cent. Dig. Judgment, §§ 1443-1503.
*Ed. Note. For cases in point, see vol. 24, Cent. Dig. Garnishment, § 144; vol. 40, Cent. Dig. Process, 70.
full faith and credit in the courts of North | entitled to full faith and credit in the courts Carolina. This contention was not allowed of North Carolina.
by the trial court, and judgment was accordingly entered against Harris for the amount of his indebtedness to Balk, and that judgment was affirmed by the supreme court of North Carolina. The ground of such judgment was that the Maryland court obtained no jurisdiction to attach or garnish the debt due from Harris to Balk, because Harris was but temporarily in the state, and the situs of the debt was in North Carolina.
Messrs. George W. S. Musgrave and Sylvan Hayes Lauchheimer for plaintiff in
Mr. John H. Small for defendant in er
The cases holding that the state court obtains no jurisdiction over the garnishee if he be but temporarily within the state proceed upon the theory that the situs of the debt is at the domicil either of the creditor or of the debtor, and that it does not follow the debtor in his casual or temporary journey into another state, and the garnishee has no possession of any property or credit of the principal debtor in the foreign state.
We regard the contention of the plaintiff in error as the correct one. The authorities in the various state courts upon this question are not at all in harmony. They have been collected by counsel, and will be found in their respective briefs, and it is not necessary to here enlarge upon them.
Attachment is the creature of the local
Mr. Justice Peckham, after making the foregoing statement, delivered the opinion of law; that is, unless there is a law of the state providing for and permitting the atThe state court of North Carolina has re-tachment, it cannot be levied there. If there✓ fused to give any effect in this action to the be a law of the state providing for the attachment of the debt, then, if the garnishee Maryland judgment; and the Federal question is whether it did not thereby refuse the be found in that state, and process be perfull faith and credit to such judgment which sonally served upon him therein, we think is required by the Federal Constitution. If the court thereby acquires jurisdiction over the Maryland court had jurisdiction to him, and can garnish the debt due from him award it, the judgment is valid and entitled to the debtor of the plaintiff, and condemn to the same full faith and credit in North it, provided the garnishee could himself be Carolina that it has in Maryland as a valid sued by his creditor in that state. We do domestic judgment. not see how the question of jurisdiction vel non can properly be made to depend upon the so-called original situs of the debt, or upon the character of the stay of the garnishee, whether temporary or permanent, in the state where the attachment is issued. Power over the person of the garnishee conwhere the writ issues. Blackstone v. Milfers jurisdiction on the courts of the state ler, 188 U. S. 189-206, 47 L. ed. 439-445, 23 Sup. Ct. Rep. 277. If, while temporarily there, his creditor might sue him there and recover the debt, then he is liable to process of garnishment, no matter where the situs of the debt was originally. We do not see the materiality of the expression "situs of the debt," when used in connection with attachment proceedings. If by situs is meant the place of the creation of the debt, that fact is
The defendant in error contends that the Maryland court obtained no jurisdiction to award the judgment of condemnation, because the garnishee, although at the time in the state of Maryland, and personally served with process therein, was a nonresident of that state, only casually or temporarily within its boundaries; that the situs of the
debt due from Harris, the garnishee, to the defendant in error herein, was in North Carolina, and did not accompany Harris to Maryland; that, consequently, Harris, though within the state of Maryland, had not possession of any property of Balk, and the Maryland state court therefore obtained no jurisdiction over any property of Balk in the attachment proceedings, and the consent of Harris to the entry of the judgment was immaterial. The plaintiff in error, on the contrary, insists that, though the garnishee were but temporarily in Maryland, yet the laws of that state provide for an attachment of this nature if the debtor, the garnishee, is found in the state, and the court obtains jurisdiction over him by the service of process therein; that the judgment, condemning the debt from Harris to Balk, was a valid judgment, provided Balk could himself have sued Harris for the debt in Maryland. This, it is asserted, he could have done, and the judgment was therefore
immaterial. If it be meant that the obli
gation to pay the debt can only be enforced
this judgment of condemnation against the garnishee, or payment by him of such judg ment, is pleadable in bar to an action brought against him by the defendant in the attachment suit for or concerning the property or credits so condemned.
ly or temporarily. His obligation to pay | 72 Md. 1, 5, 6, 18 Atl. 962. Section 34 of would be the same whether he was there in the same Maryland Code provides also that that way or with an intention to remain. It is nothing but the obligation to pay which is garnished or attached. This obligation can be enforced by the courts of the foreign state after personal service of process therein, just as well as by the courts of the domicil of the debtor. If the debtor leave the foreign state without appearing, a judgment by default may be entered, upon which execution may issue, or the judgment may be sued upon in any other state where the debtor might be found. In such case the situs is unim✓portant. It is not a question of possession in the foreign state, for possession cannot be taken of a debt or of the obligation to pay it, as tangible property might be taken possession of. Notice to the debtor (garnishee) of the commencement of the suit, and notice not to pay to his creditor, is all that can be given, whether the garnishee be a mere casual and temporary comer, or a resident of the state where the attachment is laid. His obligation to pay to his creditor is thereby arrested, and a lien created upon the debt itself. Cahoon v. Morgan, 38 Vt. 236; National F. Ins. Co. v. Chambers, 53 N. J. Eq. 468, 483, 32 Atl. 663. We can see no reason why the attachment could not be thus laid, provided the creditor of the garnishee could himself sue in that state, and its laws permitted the attachment.
There can be no doubt that Balk, as a citizen of the state of North Carolina, had the right to sue Harris in Maryland to recover the debt which Harris owed him. Being a citizen of North Carolina, he was entitled to all the privileges and immunities of citizens of the several states, one of which is the right to institute actions in the courts of another state. The law of Maryland provides for the attachment of credits in a case like this. See §§ 8 and 10 of article 9 of the Code of Public General Laws of Maryland, which provide that, upon the proper facts being shown (as stated in the article), the attachment may be sued out against lands, tenements, goods, and credits of the debtor. Section 10 particularly provides that "any kind of property or credits belonging to the defendant, in the plaintiff's own hands, or in the hands of any one else, may be attached; and credits may be attached which shall not then be due." Sections 11, 12, and 13 of the above-mentioned article provide the general practice for levying the attachment, and the proceedings subsequent thereto. Where money or credits are attached, the inchoate lien attaches to the fund or credits when the attachment is laid in the hands of the garnishee, and the judgment condemning the amount in his hands becomes a personal judgment against him. Buschman v. Hanna,
It thus appears that Balk could have sued Harris in Maryland to recover his debt, notwithstanding the temporary character of Harris' stay there; it also appears that the municipal law of Maryland permits the debtor of the principal debtor to be garnished, and therefore if the court of the state where the garnishee is found obtains jurisdiction over him, through the service of process upon him within the state, then the judgment entered is a valid judgment. See Minor on Conflict of Laws, § 125, where the various theories regarding the subject are stated and many of the authorities cited. He there cites many cases to prove the correctness of the theory of the validity of the judgment where the municipal law permits the debtor to be garnished, although his being within the state is but temporary. See pp. 289, 290. This is the doctrine which is also adopted in Morgan v. Neville, 74 Pa. 52, by the supreme court of Pennsylvania, per Agnew, J., in delivering the opinion of that court. The same principle is held in Wyeth Hardware & Mfg. Co. v. H. F. Lang & Co. 127 Mo. 242, 247, 27 L. R. A. 651, 48 Am. St. Rep. 626, 29 S. W. 1010; in Lancashire Ins. Co. v. Corbetts, 165 Ill. 592, 36 L. R. A. 640, 56 Am. St. Rep. 275, 46 N. E. 631; and in Harvey v. Great Northern R. Co. 50 Minn. 405, 406, 407, 17 L. R. A. 84, 52 N. W. 905; and to the same effect is Embree v. Hanna, 5 Johns. 101; also Savin v. Bond, 57 Md. 228, where the court held that the attachment was properly served upon a party in the District of Columbia while he was temporarily there; that as his debt to the appellant was payable wherever he was found, and process had been served upon him in the District of Columbia, the supreme court of the District had unquestioned jurisdiction to render judgment, and the same having been paid, there was no error in granting the prayer of the appellee that such judgment was conclusive. The case in 138 N. Y. 209, 20 L. R. A. 118, 34 Am. St. Rep. 448, 33 N. E. 938 (Douglass v. Phenix Ins. Co.) is not contrary to this doctrine. The question there was not as to the temporary character of the presence of the garnishee in the state of Massachusetts, but, as the garnishee was a foreign corporation, it was held that it was not within the state of Massachusetts so as to be liable to attachment by the service upon an agent of the company within that state. The general principle laid down in