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the property. Plan Serious question is raised by
Fed. Cas. No. 17,842; Thompson v. Afflick, 2 is now attempting to assert as a llen against Cranch, C. C. 46, Fed. Cas. No. 13,939. It follows that, regardless of the questions pre- his sworn statements of the facts in regard to sented in regard to the constitutionality of his relations with the company. Did not his the repeal of the statute, the pleas not having course towards his client during the time of been filed in apt time, the court was justi- his employment preclude him from asserting fied in refusing the amendment of the three- | any rights or title in the premises? The suit years statute, and it is to be presumed that was in equity, in which it is a fundamental his refusal was based upon that reason, and maxim that he who seeks its aid must "show it might with equal propriety have been ex- clean hands," at least show his own conduct tended to the refusal of the plea of the gen- fair and honest, such as entitles him to equieral statute of six years.
table consideration. The claim of title sought It is ably urged and contended by counsel to be enforced by him was shown by himself for appellants—First, that the court erred in to have been so antagonistic to his employer, admitting in evidence the record of the trust and so in fraud of its rights, as to warrant a deed from the county records of Lake county; court in rejecting and disregarding it. second, that the court erred in admitting in The question suggested in regard to the adevidence the copy of the trust deed attached mission of evidence will' be briefly discussed, to the deposition of Kendrick; third, that the The mining company was a foreign corporacourt erred in admitting in evidence the tion organized under the laws of Great Britsworn copy of the articles of association of ain. Its organization, its validity, and the the Olathe Silver Mining Company, attached validity of its proceedings as a corporate body to the deposition of Kendrick. In the affida- were under the statutes of that government, vit of Owers it is said that Manning and and controlled by them; hence the laws of Scott were ignorant of the facts stated in re- this state, of the United States, were inoperagard to the pleas of the statute of limitation; tive in regard to the home administration of that, if the said defendants had been aware its corporate affairs. The land sought to be of the facts, they would have each interposed foreclosed was in this state. The proceeding the pleas. Nothing is said in regard to the for foreclosure was governed by the lex loci. interposition of the plea by the debtor, the It is contended that the mortgage, not hav. mining company. In his answer he prays to ing been acknowledged as required by our be permitted to defend as a stockholder on statutes, could not be admitted in evidence, behalf of the company, and make such an- and that the court erred in admitting it. In swer as the company might or could make in Holladay v. Dailey, 1 Colo. 460, it was said, the premises. It clearly appears that, after in regard to a deed of conveyance: "Whether verifying and filing the answer of the com- it was acknowledged in conformity with the pany as its attorney, Owers abandoned the statute or not is a matter of indifference, for claim to the position, and, so far as the com- the acknowledgment is but a means of provpany was concerned, it was without defense, ing the execution and authenticating the recand in default. For the purposes of this opin- ord when the instrument shall be thereafter ion, Owers, Manning, and Scott must be re- recorded; and, the statute which requires it garded as interveners as between the bond- | being in the affirmative, and without any. holders seeking foreclosure and the mortga- negative implication to exclude the common gor, tacitly confessing the justice of the law, the conveyance will be valid, as between claims. This remark becomes necessary in the parties thereto and those having notice connection with the discussion of the ques- | thereof, even though not acknowledged at tions raised, suggesting, as they do, the fur- all.” The case was taken by writ of error ther question to what extent the defendants to the supreme court of the United States, could go in a collateral attack upon the bona and there affirmed. 19 Wall. 606.
We are fides and regularity of corporate proceedings not aware that the doctrine there asserted, when the debtor (mortgagor) admits the jus- that the acknowledgment was but a means tice and regularity of the claims, where the of proving the execution,-not the only rights attempted to be asserted by the defend- means,-and, as between the parties and ants originated long subsequent to the mort- those having notice, would be valid without gage, and the record of the same, which, ac- any acknowledgment whatever, has cording to the affidavit of Owers, occurred been questioned. The acknowledgment enwhile he was the attorney of the company, titles it, under our statute, to record. The and supposed to be looking after its interests. record is solely for the purpose of notice. It also appears from his sworn statements The validity is in no way dependent upon that at the time of the purchase by him of the either. The requirements are for the purBritton and Gray judgment, and the sale to poses of evidence only, and for the protecothers of undivided interests in the property, tion of creditors and subsequent incumbranhe remained the attorney while asserting an cers, bona fide, without notice.
The quesadverse title, and afterwards brought the suit tion of notice is one of fact, and may, when for services during the time he was obtain- necessary by reason of defective acknowling, asserting, and selling the adverse title, edgment, be established by other competent and obtained a judgment of $2,000, which he evidence, aside from the record. Owers,
who obtained the entire adverse title, as the Carefully authenticated and verified copies attorney of the company, was chargeable were produced of every important paper necwith notice at the inception of his supposed essary as evidence, including the charter of title. At the time of the trial the company the company, its official acts, resolutions, etc., had been compelled to go into voluntary liqui- | authorizing the mortgage, together with caredation, and be wound up. The high court ful and elaborate proof of the personnel of of chancery had the jurisdiction, and was in the governing body, the execution of the papossession of all the papers and records per- per under the corporate seal, and the reason taining to the corporation; and although, by added why the original paper was not propermission of court, access was had for the duced. purpose of securing verified copies, it was It is technically urged that it was not shown by the testimony of two witnesses, shown that the mortgage was executed by and unquestioned, that the original papers the president or chairman of the board of could not be withdrawn from the custody of trustees or directors. Courts are not to the court. Section 217, Gen. St., is as fol- | presume that there were such officers. Where lows: “Deeds, bonds and agreements in writ- it is shown that the paper was executed by ing, for the conveying or encumbering of real the board of control, and the seal of the corestate, or any interest therein, shall be poration affixed by the custodian by order of deemed from the time of being filed for rec- the board of control, it is sufficient. Section ord, notice to subsequent purchasers or en- 119 of the charter provides that the seal cumbrancers though not acknowledged or shall be evidenced by the signature thereto proven according to law, but neither the of one of the directors and the secretary. same, nor the record thereof, shall be read as In this case it was evidenced by three dievidence, unless subsequently acknowledged rectors and the secretary. In Lovett v. As. or proved according to law, or unless their ex- sociation, 6 Paige, 60, the learned chancellor ecution be otherwise proved in the manner re- said: “The seal of a corporation aggregate quired by the rules of evidence applicable to
affixed to the deed is of itself prima facie such writings so as to supply the defects of evidence that it was so affixed by the ausuch acknowledgment or proof; this section thority of the corporation; especially if it shall apply as well to all such deeds, bonds is proved to have been put to the deed by and other writings heretofore recorded, as to an officer who was intrusted by the corpothose hereafter to be recorded.” Though ration with the custody of such seal. not acknowledged or proven according to And it lies with the party objecting to the law, they are from the date of record notice due execution of the deed to show that the to subsequent purchasers or incumbrancers, corporate seal was affixed to it surreptitiousbut neither they nor the record can be used ly or improperly, and that all the preliminary as evidence, “unless their execution be oth- steps to authorize the officer having the legal erwise proved in the manner required by custody of the seal to affix it to the deed had the rules of evidence applicable to such writ- not been complied with." See Kyd, Corp. ings.” The section clearly allows and rec- 268; Ang. & A. Corp. 115; Clarke v. Coke ognizes proof as at common law of their ex- Co., 4 Barn. & Adol. 315; Whart. Ev. 634; ecution. In Greenl. Ev. § 557, in speaking Doe v. Chambers, 4 Adol. & E. 410; Burrill of such documents as deeds, bills, and notes, V. Bank, 2 Metc. (Mass.) 166; St. John's it is said: “These must be produced, and the Church v. Steinmetz, 18 Pa. St. 273. This execution of them generally proved, or their fundamental principle of the law of eviabsence duly accounted for, and their loss dence appears to have been overlooked; also supplied by secondary evidence.” In Burton the other fact that the corporation was not v. Driggs, 20 Wall. 134, it is said: “It is an the plaintiff, but a codefendant; hence the axiom in the law of evidence that the con- greater necessity of establishing by competents of any written instrument lost or de- tent proof any fact of want of authority, irstroyed may be proven by competent evi- regularity, or fraud in the transaction to dence.
It is well settled that, if vitiate the deed of trust, instead of reversing books or papers necessary, as evidence in and throwing upon the plaintiffs the burden one state be in the possession of a person of proof of every fact in advance, and re living in another state, secondary evidence, quiring it to anticipate every objection the without further showing, may be given to ingenuity of counsel could suggest. It folprove the contents of such papers, and notice lows that we do not think any serious error to produce thein is unnecessary;" and such warranting a reversal occurred upon the has invariably been held to be the law in trial. The judgment and decree were fully different states. See Burnham v. Wood, 8 warranted by the facts and evidence. The N. II. 334; Beattie v. Hilliard, 55 N. H. 428; claim of title as made by the defendants Harper v. Cook, 1 Car. & P. 139; Shepard was not such as to appeal to the conscience v. Giddings, 22 Conn. 282; Bailey V. John- of a chancellor, or such as to demand great son, 9 Cow. 115; Mauri v. Heffernan, 13 consideration. The judgment of the district Johns. 58; Eaton v. Campbell, 7 Pick. 10. court will be affirmed. - Affirmed.
(6 Colo. App. 85)
ident of the state of Kansas; third, that ATCHISON, T. & S. F. R. CO. V. MAG- the wages due defendant were earned outGARD.
side of the state of Colorado, and without (Court of Appeals of Colorado. March 11,
the jurisdiction of this court; fourth, that 1895.)
his wages are exempt to him by virtue of GARNISHMENT-JURISDICTION OF DEFENDANT-Ex
the laws of the state of Kansas, where the EMPTIONS.-CovFLICT OF LAWS.
same were earned,"—which was denied by 1. As exemption laws have no extraterrito- the court on September 28th. The followrial force, a garnishee will not be discharged
ing stipulation of facts was filed on the merely because the wages sought to be reached
same date: “That the said the Atchison, by garnishment were earned in another state, under whose laws they are exempt.
Topeka and Santa Fé Railroad Company is 2. Jurisdiction of a nonresident defendant a corporation organized and existing under cannot be obtained in an action on notes made
and by virtue of the laws of the state of and payable at his residence by garnishment of his wages due from a foreign railroad com
Kansas, and, at the time of the service of pany, whose road extends into the state of the garnishee summons herein, said corporation forum.
owned and operated a railroad within the Appeal from district court, Arapahoe county of Arapahoe and state of Colorado. county.
Second. That the said C. C. Shawver was Action by James A. Maggard against C. C. and is a resident of the state of Kansas; Shawver (the Atchison, Topeka & Santa
that the said James A. Maggard was and is Fé Railroad Company, garnishee). From a a resident of the city of Denver and state judgment for plaintiff, against defendant and of Colorado. Third. That the wages shown the garnishee, the garnishee appeals. Re
to be due the said defendant, Shawver, were versed.
earned outside of the state of Colorado. Jaggard (appellee), on May 10, 1893, sued Fourth. That the wages so earned by the out an attachment against one C. C. Shaw- said Shawver were exempt from execution, ver. On May 22d, the sheriff made return under the laws of the state or territory of the writ of attachment, with the indorse- wherein the same were earned.” October ment that he had had the writ since the 23, 1893, a default was taken against the 10th day of May, and had failed to find the defendant, Shawver; an order of court was defendant in his county. On May 11th the entered sustaining the attachment; and complaint was filed, alleging that the de- judgment entered for $130.35, and judgment fendant was indebted upon two promissory against appellant (garnishee) for same notes, made at Wellington, Kan.,--the first amount. for the sum of $61, dated May 12, 1888, with
Rogers, Cuthbert & Ellis, and Chas. E. interest at 12 per cent. per annum, payable Gast, for appellant. Bicksler, McLean & to Maggard & Hunt, and by them indorsed
Pershing, for appellee. to the plaintiff; the second, of the same date, $9.50, with interest at the same rate, REED, J. (after stating the facts).
The payable to the plaintiff. Summons was is- appeal was taken by the garnishee. The sued May 18, 1893. On the 22d, it was re- questions presented are purely questions of turned “Defendant not found in the coun- law on the facts which are stipulated and ty.” On the 9th of June an affidavit was shown by the record. The questions to be made and filed by the plaintiff of the non- determined are quite troublesome by reason residence of the defendant. On July 7th of conflicting decisions in different states upan order for publication of summons was on the same and similar statutes.
We are made; proof of publication filed August 7, greatly aided in the investigation by the great 1893. On June 14th a garnishee summons ability and industry of the respective counsel against appellant was issued; returned in printed briefs and arguments. The case "Served" on June 24th. Appellant answer- is presented with a thoroughness deserving ed: “There is due defendant $69.10 for April great commendation. wages, $78.61 for May wages, and $17.35 for The main question is, did the court obtain wages for June, which is all there was due jurisdiction of the defendant through the prohim at the time of the service hereof; that ceeding by attachment and garnishment of affiant is informed and believes that the the appellant? At the time of the making of defendant is a nonresident of the state of the notes, both plaintiff and defendant residColorado, a married man, the head of a ed in Kansas. The plaintiff removed to this family, and residing with the same; and state, and could proceed in the courts, prothat his wages are exempt to him under the vided jurisdiction of the defendant could be laws of the state of Kansas." June 24th the had. The defendant continued to reside in following motion was filed: “Comes now Kansas. No personal service could be had the Atchison, Topeka and Santa Fé Railroad upon him. Only constructive service could Company, and moves the court to dismiss be had, and that only by reason of the proand discharge said company as garnishee ceeding in rem. The subject of attachment herein, for the reasons: First, that the was a chose in action,--an admitted indebtedAtchison, Topeka and Santa Fé Railroad ness for labor performed by the defendant for Company is a corporation of the state of appellant in Kansas, under a contract made Kansas; second, that the defendant is a res- in that state, to be performed and payment to be made in that state. Appellant, a corpo- tained over the person of the principal debtration, created by that state, with its head- or; that it becomes a vested right in rem, quarters in that state, operated a line of rail- which follows the debt into any jurisdiction road or the continuation of a line in this state. where the debt may be considered as going." The laws of a state have no extraterritorial In that case the creditor and debtor both reforce. There are two well-established and sided in Indiana. The claim was sold and axiomatic principles of public law. The first assigned to plaintiff in Michigan. The ciris that every state possesses exclusive juris- cuit court found that the claim was assigned diction and sovereignty over persons and for the purpose of instituting garnishee proproperty within its territory. The second is ceedings in the state of Michigan, and eradan outgrowth, and follows from the first, viz. ing the exemption laws of the state of Inthat no state can exercise direct jurisdiction diana. I cannot understand how the motives and authority over persons or property out- or intention of the parties could affect the leside its territorial limits. Story, Confi. Laws, gal question, for the court did not place its c. 2, $ 539; Wheat. Int. Law, pt. 2, c. 2. The decision upon the ground that no legal title statements of these well-settled principles of passed to the assignee, but upon the broad public law are deemed necessary in disposing ground that the fund attached carried with it of one branch of the case, urged with ability into the state of Michigan the protection of at some length by counsel for appellant, based the exemption laws of the state of India na. upon the statement, contained in appellant's It is a labored opinion, but so at variance answer in the garnishee proceedings: “That with the general principles of law that we affiant is informed and believes that the de- cannot follow it. If the criticism can be fendant is a nonresident of the state of Colo- pardoned, it seems to be contradictory to it. rado, a married man, the head of a family, self. It says: "When one entitled to such and residing with the same; and that his exemption keeps his person and his property wagęs are exempt to him under the laws of within the locality of his contract,” etc. If it the state of Kansas.” It may be as well to was property of the debtor in the state of dispose of this contention before taking up Michigan, it was not kept within the state the discussion of the principal question. In of Indiana when the respective contracts view of the principles of law abo cited, it were made. Had it been kept, the questions becomes apparent that this is ancillary and discussed could not have arisen. Wright v. dependent upon the finding in the main ques- Railroad Co., 19 Neb. 175, 27 N. W. 90, is cittion. If the right attached was property in ed and relied upon in the Michigan case, and this state, and subject to attachment under also by counsel in this, but appears to have state law, then the lex fori and not the lex been entirely misunderstood. The case was loci contractus controls, and this practically in all particulars identical with this. Plaindisposes of the matter. If it was not property | tiff and defendant were residents of Iowa. in this state, the entire proceeding was void The railroad company, garnisheed, operated for want of jurisdiction. If it was property its road in both lowa and Nebraska. The within the state through which the court contract for labor was made, the service percould enforce jurisdiction, then the laws of formed, and payment to be made in the forexemption of the state of Kansas, having no mer state. Suit by attachment and garnishextraterritorial application, could not be ment was instituted in Nebraska. The garpleaded effectually in this state. I am aware nishee set up in the answer the same defense that there are some authorities that seem to as in this, but the statute of exemption apsupport the contention of counsel, notably plied was that of Nebraska, and not that of Drake v. Railway Co., 69 Mich. 168, 37 N. W. | Iowa. By section 531a of the Code of Ne 70, where it is said in the opinion: “Yet, braska, “the wages of laborers, mechanics when one entitled to such exemption keeps and clerks who are heads of families his person and his property within the local shall be exempt from the operation of atity of the contract, and does not enter, and tachment execution and garnishee process"; is not brought, except by substituted service, and, although the head of the family and rewithin this state, he cannot, in reason and siding in Iowa, the fund was held exempt justice, be deprived of the exemption secured in Nebraska by local law. An examination to him by the law of his domicile.
of the statutes in the different states exemptIt must be held, I think, not only as a matter ing wages shows that in each case it depends of simple justice, but as sound law, which upon the person being the head of the family means justice, that where the creditor, debt. and residing with them. The statutes can or, and garnishee, at the time of the creation only be construed as applying to those who of both debts, are all residents and doing are residents of the state where the statute business in Indiana, and both debts are cre- is enacted. Aside from the fundamental ated, and intended to be payable, in that principle that laws can have no extraterritostate, the exemption of wages is such an in- rial force, each state is supposed to protect cident and condition of the debt from the em- only its own, and it is not to be presumed ployer that it will follow the debt, if the debt that the state of Nebraska intended to protect follows the person of the garnishee into Mich- the families of parties living in Iowa. Stat. igan, and attach itself to every process of col- utes of this character are passed-First, in lection in this state, unless jurisdiction is ob- | the interest of humanity, to prevent the fund
upon which the family is dependent for sup- 2. It is elementary that, under the circumport being withdrawn, and they left destitute; stances, the power of the court to assume second, in the interest of the state, to protect jurisdiction and inquire into the obligations the families of laboring men, so they would of a nonresident was dependent upon the not become a public charge. No reasonable seizure of property of the defendant within construction of the intention of the legislature | the jurisdiction of the court. Without such could extend the act to the protection of those seizure no service could be had by publicadomiciled in other states. Such construction tion. No judgment could have been entered would lead to great confusion. A man might against the defendant, and none against the have property in three or four different states, garnishee. The fundamental question in this and he could invoke the aid of the exemption case is, was the money due for services perlaws of each, for the benefit of a family re- formed in Kansas, and payable there, propsiding in one, when all exemption laws evi- erty of defendant in this state? It is stipudently contemplated but one exemption. In lated that appellant is a corporation and reseach state the condition precedent is that the ident of the state of Kansas, but is shown to man is the head of a family residing in the have been operating a part of its line in this state where the aid of the law is invoked; state. It is also stipulated that the defend. and under every statute I have examined the ant is a resident of the state of Kansas, and fact must not only be established, but the that the wages sought to be reached were claim of exemption made. Like many other earned and payable there. If such fund statutes, the right to exemption may be waiv- could be reached by service of garnishment ed for want of a claim.
papers in this state, it must be obvious that The only logical conclusion I can reach is the plaintiff could have attached by garthat the Michigan court erred in importing nishee proceedings at any station on its line the statute of Indiana, and applying it, and where it had an agent, upon the theory that the state of Nebraska, in applying its own the claim was ambulatory, and had a situs law, for the protection of a family residing in the office of each agent, regardless of loin another state. Both decisions were evi- cation. This cannot be the law. As between dently dictated by humanity and justice, the plaintiff and defendant, the debt, beyond but, in my opinion, are put upon no sound question, followed the domicile of the plainlegal basis, and are efforts at legislation, in- tiff. That was its situs. But the indebtedstead of the application of laws. This ness of the garnishee to the defendant did particularly apparent from an unguarded ex- not follow the plaintiff. Its situs was by pression in the Nebraska opinion, when it contract fixed where the services were peris said: "While the exemption laws of a formed and the payment to be made; and if state have no extraterritorial effect, yet they
such claim or indebtedness is property, in should be so construed as to give them ef- contemplation of the statute, the situs of fect." Comment upon such a sentence seems such property was in Kansas, and not in unnecessary. The answer in both cases Colorado. Care must be taken not to conmay, in our view of the case, be very brief. found the indebtedness due from the deThe laws for attachment and garnishment fendant to the plaintiff with that due the for the purpose of collecting the debt were defendant from the garnishee. They have no those of the state of Michigan; the law of relation to each other whatever. Each has exemption, that of the state of Indiana, and its proper situs, regulated by law or concould no more be applied to prevent the col- tract, or both. The courts of the state could lection and abrogate the laws of Michigan not abrogate the contract of the garnishee than the law of attachment and collection with the defendant, and compel a different laws of Michigan could be enforced in Indi- performance. There was no service upon ana by reason of the debt having been con- the defendant; no appearance by him. The tracted in Michigan. If the law of exemp- proceeding was only in rem, and the only tion of one state inheres in and attaches to jurisdiction obtained was by the attachment a claim in another, the collection laws of of property. If no property was found and the state where the contract was made must, attached, there was no jurisdiction. As beof necessity, attach and go with it into any fore stated, whether such a claim was propstate where collection is attempted. Any at- erty has been differently answered by differtempt to make state laws extraterritorial ent courts. That it is not for the purpose must be futile, and only result in complica- of conferring jurisdiction is plainly inferation and confusion. Many authorities are ble from the decisions of the federal courts. cited, in both the Michigan and Nebraska See Mason v. Beebee, 44 Fed. 556; Tappan v. cases supposed to support the finding. Most Bank, 19 Wall. 490; McCarty v. The City of of them are wanting in analogy, and others New Bedford, 4 Fed. 818; Pennoyer v. Neff, are only of value inferentially. If the prin- 95 U. S. 714; Cooper v. Reynolds, 10 Wall. ciple contended for in those cases is to pre- 308. In Pennoyer v. Neff, supra, it is said, vail, it would seem to be in direct conflict at page 723: "Every state owes protection with the fundamental public law that the to its own citizens; and, when nonresidents operation of statutes is confined to the state; deal with them, it is a legitimate and just and it would also be destructive of the com- exercise of authority to hold and appropriate ity existing betwecu different states.
any property owned by such nonresidents