Planters Chemical & Oil Co. v. Waller &. Co.

McCLELLAN, J.

I concur in the conclusion that the city court obtained jurisdiction to subject, by garnishment, the debt due the nonresident defendant to the payment of the plaintiff’s demand. A full statement of the reasons for my concurrence will be found in Shuttleworth & Co. v. Marx & Co., 159 Ala. 49 South. 83.

It seems to me that the majority, in this case, have not taken, in decision, the real question raised on this appeal, and that, in consequence, the attempted differentiation, as upon the facts appearing, of the Dooley, Chumley, and Nash Cases, will only result in uncertainty as to what is the real state of the law upon the question presented by this appeal. That the Dooley, Chumley, and Nash Cases affirm that the “situs of a debt, in the absence of stipulation to the contrary, is the domicile of the creditor,” cannot be doubted even by the most casual reader of those decisions. Indeed, in the Nash Case Chief Justice Brickell devotes, additionally to express reference to and restatement of the holdings in the Dooley and Chumley Cases, many pages of discussion to the question of situs of a debt for purpose of acquiring-jurisdiction of a nonresident creditor.- If these anr nouncements be pure dicta in those cases, a view not, in my opinion, supported by them, we should so state, that *226these decisions may not, on the point under consideration, be hereafter used as authority for a conclusion immediately contrary to what is the effect of the holding in this case.

In the absence of voluntary appearance by or service upon a nonresident of this state there is but one method by which jurisdiction to render a valid binding judgment, dealing with his interests or rights, can be acquired, and that is that property of the nonresident is within the process power — jurisdiction—of a competent court of this state. Hence in this case the question is: Was the debt, due the defendant from the garnishee, property of the defendant within the process power of the city court, the garnishee being subject to the service thereof? If the situs of the debt was at the domicile of the nonresident defendant, as the Dooley, Chumley and Nash Cases, expressly hold, then the city court was without jurisdiction to condemn that debt to the satisfaction of plaintiff’s demand, and hence to discharge the nonresident defendant’s debtor, the garnishee.

Our statutes, referred to in the opinion of the majority, warrant the attachment by garnishment of debts due nonresidents, as well as residents, of this state; but this statutory status was, in substance, the same when the Dooley, Chumley, and Nash Cases were delivered here. Regardless of this fact, however, it cannot be that an enactment of this state can change the situs of property outside the state. This proposition is conclusively stated and maintained by Brickell, C. J., in Nash Case, 118 Ala. 182, 183, 23 South. 825, 11 L. R. A. 331, 72 Am. St. Rep. 181. In the Shuttleworth-Marx Case the writer has, at perhaps unnecessary length, reviewed the cases of Harris v. Balk and C., R. I. & P. R. R. v. Sturm; and under tlie'ir influence the opinion is entertained that, if we enforce the doctrine of situs as declared in *227the Dooley, Chumley, and Nash Cases, and at the same time yield, as we mnst, to the authority of Harris v. Balk, two kinds of attachment law would prevail in this state.

I am unwilling to, in effect, close our courts to our own people, when under the “full faith and credit clause” of the federal constitution, our courts must yield obedience to judgments pronounced by other tribunals alone obtaining jurisdiction to subject a nonresident’s property by garnishment served on his debtor;, and this view is attained under necessity, as indicated, rather than upon assurance that the stated doctrine of the Dooley, Chumley, and Nash Cases is unsound. If in fact sound, the mentioned necessity still exists, and must it seems to me, work the departure from them that fairness to our courts and people dictates.