Opinion
No. 31353.
October 29, 1934. Suggestion of Error Overruled December 10, 1934.
1. BANKS AND BANKING.
Issuance of writ of attachment and publication of notice for nonresident national bank in chancery suit against it and state bank's liquidator for proceeds of draft collected by national bank held prohibited by federal statute (12 U.S.C.A., sec. 91).
2. APPEARANCE.
Effort to attach nonresident national bank's property in violation of federal statute cannot be used as basis for holding such bank in court as defendant on ground that it entered general appearance by filing motion to quash attachment (12 U.S.C.A., sec. 91).
3. COURTS.
Where nonresident national bank's property sought to be attached in suit against such bank and resident liquidator of state bank, is not in court, there is no res on which court can operate and court has no jurisdiction of nonresident defendant, though liquidator was properly in court (12 U.S.C.A., sec. 91).
4. APPEARANCE.
Defendant's appearance especially for purpose of moving to quash attachment and dismiss bill for want of jurisdiction cannot operate as personal appearance (Code 1930, sec. 173).
5. APPEARANCE.
Motion of nonresident national bank, not doing business in state, to quash attachment in suit against it, did not constitute general appearance (Code 1930, sec. 4166).
6. COURTS.
Chancery court was without territorial jurisdiction of nonresident national bank not doing business in state (Code 1930, sec. 4166).
7. COURTS.
Nonresident national bank, not doing business in state, did not waive point that chancery court lacked jurisdiction of attachment suit against it by pleading want of territorial jurisdiction (Code 1930, sec. 4166; 12 U.S.C.A., sec. 91).
8. APPEARANCE.
Nonresident national bank's appearance in chancery court suit for purpose of moving to quash attachment, issued against its property in violation of federal statute, did not confer territorial jurisdiction over bank on court, which should have dismissed bill as to bank after quashing attachment (Code 1930, sec. 4166; 12 U.S.C.A., sec. 91).
9. APPEARANCE.
Nonresident national bank's inclusion of portion of statute limiting jurisdiction of suits against such banks to courts of cities and counties in which situated as ground for motion to quash attachment of its property did not affect its right to such relief and dismissal of bill as against it (12 U.S.C.A., secs. 91, 94).
APPEAL from the Chancery Court of Sunflower County.
Flowers, Brown Hester, of Jackson, and Cooper Thomas, of Indianola, for appellant.
The case at bar is clearly an attachment case.
The lower court acquired no jurisdiction of appellant by virtue of section 5242 of Revised Statutes of U.S., Title 12, sec. 91, U.S.C.A.
Section 5242, applies regardless of solvency.
Pac. Nat. Bank v. Mixter, 31 L.Ed. 567, 124 U.S. 721, 8 S.Ct. 718.
The state courts are without jurisdiction.
Merchants Laclede Nat. Bank v. Troy Gro. Co., 39 So. 476; 7 C.J., p. 836; Aldridge v. First Nat. Bank, 144 So. 409.
Filing of motion in present case did not constitute general appearance by appellant.
Davis v. C.C.C. St. L.R. Co., 217 U.S. 157, 30 S.Ct. 463, 54 L.Ed. 708; National City Bank v. Stupp Bros., etc., 113 So. 340.
Appellant is not suable in courts of this state by virtue of Title 12, Section 94, Banks Banking, U.S.C.A.
First National Bank v. Morgan, 132 U.S. 141; Bank of America v. Whitney Central, 261 U.S. 171.
Moody Johnson, of Indianola, for appellee.
No issue is presented as to the action of the court in sustaining the motion and discharging the attachment. Hence the only issue presented is as to the action of the court in overruling the motion to dismiss the bill of complaint.
The exemption of a national bank from suit in any state court, except one of the county or city in which it is located, is a personal privilege, which it could claim or not, as it deemed necessary.
First National Bank of Charlotte v. Morgan, 132 U.S. 141, 10 S.Ct. 37, 33 L.Ed. 283; Bank of America v. Whitney Central National Bank of New Orleans, 26 U.S. 171, 67 L.Ed. 594.
It may be true that if the appellant had been sued alone in any county in this state, the court might have been without territorial jurisdiction, and the question of appearance would not be presented by such a record.
However, the record in the case at bar does not present such a question. In the case at bar the suit was based on a joint cause of action against a resident-defendant and a nonresident defendant. That is to say, against J.S. Love, Superintendent of Banks, etc., and the appellant, and, by virtue thereof, the court below had territorial jurisdiction of the cause of action, though it lacked jurisdiction of the person of the appellant, unless it appeared.
Independent of the statute, as we understand it, courts, within their territorial jurisdiction, have jurisdiction of transitory causes of action where the defendant, or any of them resides.
15 C.J., p. 738.
Due to the fact that one of the defendants is within the territorial jurisdiction of the court that jurisdiction can be exercised, provided the resident defendant is served with process, not only as against the resident-defendant, but as well the nonresident defendant on whom process is not served, if he voluntarily appears.
Although a state court would not have jurisdiction of an action if all the defendants were nonresidents of the state, the fact that one or more of several defendants are residents may authorize it to take jurisdiction of the action although the other defendants are nonresidents.
15 C.J. 793-4, 789.
The principle that a general appearance confers personal jurisdiction is of great importance when a nonresident is sued. In a personal action brought against a citizen of another state, the court does not acquire jurisdiction over him by virtue of notice served on him in such other state; process cannot extend beyond the limits of the state. But a nonresident becomes subject to the jurisdiction of the court by a general appearance.
4 C.J., p. 1352.
It is our settled, and long settled, practice that when a party comes in he must come in entirely or else he must entirely stay away.
McCoy et al. v. Watson, 122 So. 368-9.
The appellee filed its bill in the chancery court of Sunflower county against the appellant, the First National Bank of St. Louis, and J.S. Love, superintendent of banks of Mississippi, and the liquidator of the Bank of Indianola, alleging, in effect, that the Bank of Indianola and the First National Bank of St. Louis had appropriated the proceeds of a certain draft of which appellee was the owner, and which had been collected by the First National Bank of St. Louis, and to the proceeds of which draft the appellee was entitled. The bill sought a money decree against both banks for the amount so collected in said draft. The bill also alleged that the Holmes Bakeries, Inc., a corporation domiciled at Indianola, Mississippi, and Mrs. A.R. Gidden, a resident of Indianola, Mississippi, were indebted to the First National Bank of St. Louis and the Indianola Bank, and they were summoned into court as garnishees by virtue of an attachment in chancery, to make discovery as to the amount of their indebtedness to the banks. Personal service of process was had upon the resident defendants, and it was alleged that the First National Bank of St. Louis was a nonresident domiciled in St. Louis, Missouri, and there was a publication of notice for said nonresident bank, and no attempt was had of personal service of the process.
The First National Bank of St. Louis appeared, as it is alleged, especially for the purpose of raising the question of jurisdiction of the court over it and its property, and for the further purpose of raising the question of the jurisdiction of the court to entertain a suit of that nature, legal, equitable, or otherwise, and for no other purpose, and moved to quash the proceedings against it, and to dismiss the bill because the court was without jurisdiction to entertain the same. Said First National Bank of St. Louis relied, as the basis of its motion, upon two federal statutes; the two pertinent parts of which being as follows:
First. "And no attachment, injunction or execution, shall be issued against such association or its property before final judgment in any suit, action, or proceeding, in any State, county, or municipal court." 12 U.S.C.A., section 91.
Second. "Actions and proceedings against any association under this chapter may be had in any district or Territorial court of the United States held within the district in which such association may be established, or in any state, county, or municipal court in the county or city in which said association is located having jurisdiction in similar cases." Section 94, title 12, Banks and Banking of the United States Code, Annotated. These are parts of the national bank laws.
There was no allegation in the bill that the nonresident foreign corporation was doing business in this state. It was agreed that the nonresident corporation was domiciled in St. Louis, and was a national bank.
Upon the hearing of this motion, the court below sustained the motion to quash the writ of attachment, but held that the First National Bank of St. Louis, by filing such motion, had thereby entered its general appearance, and, for that reason, retained the bill as to said national bank.
From that decree of the court below retaining the bill and declining to dismiss it, an appeal was granted, by the court, to the First National Bank of St. Louis to settle all the controlling principles of the case.
It is contended by the appellant, the First National Bank of St. Louis, and conceded by the appellee, that the proceeding was an attachment in chancery, and that therefore, under 12 U.S.C.A., section 91, cited supra, the court properly quashed the attachment.
The appellant also contends that by its motion it did not enter its appearance so as to confer jurisdiction of its person upon that court and that the court should have dismissed the bill.
The issuance of the writ in attachment and the publication of notice for said nonresident were clearly within the prohibition of this federal statute first above set forth. See National City Bank of St. Louis v. Stupp Bros. Bridge Iron Co., 147 Miss. 747, 113 So. 340, and Aldridge v. First National Bank of Birmingham, 165 Miss. 1, 144 So. 469. In the first mentioned case, the question was sharply presented that, by its appearance to move to quash the writ, the nonresident national bank waived service of process, thereby entered its general appearance, and was in court, and that theory was by this court rejected, and it was held in both cases that it was proper to quash the writ and dismiss the bill.
The effort to impound the property of a nonresident national bank, on the face of a federal statute prohibiting such action, cannot be used as a basis for holding such a defendant in court and securing the same result as if the federal statute did not exist.
But the appellee insists that it sought relief against J.S. Love, a representative of the Bank of Indianola, who was a resident and who was properly in court, and that therefore the court had jurisdiction, independent of the attachment proceedings, of the nonresident defendant.
We are of the opinion that the discussion of this question was necessarily involved in the decision of Aldridge v. First National Bank of Birmingham, supra, and that, when the property of a nonresident national bank is not in court, there is no res within its territorial jurisdiction upon which the court can operate. We there distinctly held that "the thing" must be in court, or, in the absence of the person, that the bill itself constituted an attachment within the prohibition of the federal statute. The appearance of the defendant in the case at bar could not operate, under section 173, Code of 1930, as a personal appearance. Independent of the statute, under the circumstances of this case, there was no territorial jurisdiction of the nonresident national bank, and its motion to quash, as we have seen, did not constitute a general appearance, as there is no contention that the defendant here was a nonresident corporation doing business within this state. The jurisdiction conferred upon courts by section 4166, Code of 1930, only embraces foreign corporations doing business in this state. This corporation was not so doing, and therefore the court below was without territorial jurisdiction. If this be true, then the nonresident corporation, the First National Bank of St. Louis, did not, by pleading the want of jurisdiction, waive the point it sought to establish. See Arnett v. Carol C. F.R. Smith, Inc., 165 Miss. 53, 145 So. 638, where this court held that the court was without jurisdiction because the defendant was served with process at a time when it was immune therefrom, and further that there was no territorial jurisdiction of the defendant, and that such a foreign corporation sued did not, by moving to quash the process and pleading in abatement, and by claiming its immunity from the process, waive the court's lack of territorial jurisdiction.
But counsel for the appellee insists that, because the Bank of Indianola was sued in Sunflower county, and because a cause of action existed against that bank and its representative as well as against the nonresident bank, it had jurisdiction against the nonresident bank, citing 15 C.J., pp. 793, 794, a part of which reads as follows: "Residents and nonresidents of state as joint defendants. Although a state court would not have jurisdiction of an action if all the defendants were nonresidents of the state, the fact that one or more of several defendants are residents may authorize it to take jurisdiction of the action, although the other defendants are nonresidents."
An examination of the authorities cited under note 21, page 794, 15 C.J., as sustaining the view above quoted, will reveal that all the decisions were based upon statutes conferring jurisdiction, and that is especially true of the case of Comstock v. Rayford, 1 Smedes M. 423, 40 Am. Dec. 102, in which slaves were impounded within the jurisdiction of the court and sought to be subjected to the payment of the complainant's debt upon a creditor's bill. The Virginia Creditors Bill Statute of 1744.
We reach the conclusion that the nonresident corporation, a national bank, not doing business in this state, did not, in any sense herein, enter its appearance so that a personal judgment might be obtained against it. In order to collect its debt from its debtors and secure its rights, it had, of necessity, to avail itself of the federal statute. The effect of this federal statute is to deny the state's remedy, in so far as national banks are concerned. See Pacific National Bank of Boston v. Mixter, 124 U.S. 721, 8 S.Ct. 718, 31 L.Ed. 567. By its appearance for the purpose of moving to quash the attachment or writ thus unlawfully issued and served, it did not confer upon the court territorial jurisdiction. The res having been dismissed from the court, the court should have dismissed the bill as to this appellant. The motion to quash herein did not submit to the court jurisdiction of the appellant's person.
We have excluded from consideration the effect of section 94, title 12 U.S.C.A., argued here, as limiting the jurisdiction of suits against national banks to the cities and counties in which they are situated. Its inclusion in the motion did not affect the right of the appellant to have the writ of attachment quashed and the bill dismissed, nor did the assertion of this additional ground, in any wise, affect its right in this behalf. This case will be reversed, and a decree will be entered here accordingly.
Reversed, and decree here for appellant.