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Selma, Rome & Dalton Railroad v. Tyson

Selma, Rome and Dalton Railroad Company, in rror v. J. G. Tyson, in error

Selma, Rome & Dalton R.R. v. Tyson, 48 Ga. 351 (1873)
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Court
Supreme Court of Georgia · State Highest Courts
Decided
January 15, 1873
Judges
Trippe
Citations
48 Ga. 351
Cited by 11
Headnotes
1. Foreign Corporation — Garnishment.*—A foreign corporation transacting business in this State, may be garnished for a debt it may owe anywhere in this State where suit for such debt could be brought. 2. Affidavit in Forma Pauperis.† — The affidavit in forma pauperis allowed by section 3984 of the Code to be made by a party applying for a writ of certiorari cannot be made for him by his attorney at law.
Summary
Corporation. Garnishment. Affidavit. Before Judge Harvey. Whitfield Superior Court. October Term, 1872. Tyson sued out an attachment against A. D. Breed, returnable to the Justice Court for the eight hundred and seventy-second district, for $25 00. Process of garnishment directed to the Selma, Rome and Dalton Railroad Company, was served on O. J. Cunningham, its agent at the city of Dalton. Judgment was obtained against the defendant. The garnishee, by its counsel, moved to be discharged on the grounds that it was a foreign corporation, and that its president did not reside in the Staté of Georgia. The motion was sustained. Whereupon Tyson carried the case by writ of certiorari to the Superior Court. When the case was called in the last mentioned tribunal, counsel for the garnishee moved to dismiss the writ of certiorari because the affidavit in forma pauperis was signed as follows: “J. G. Tyson, by his attorney, Joseph *Glenn.” The motion was overruled and the counsel for the garnishee excepted. After argument upon the merits, the Court held that the Justice of the Peace erred in deciding that the service of the summons of garnishment on the agent of the Selma, Rome and Dalton Railroad Company at Dalton, was not a sufficient service upon the company, and sustained the certiorari. Whereupon counsel for the garnishee excepted. Error is assigned upon each of the aforesaid rulings.

Syllabus and headnotes are prepared by the reporter or publisher, not the court, and are not part of the opinion.

Opinion of the Court — Trippe

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Trippe, Judge.

1. Is a foreign corporation liable to a summons of garnishment in this State? By section 3213 of the Code attachments may issue against such corporations “under the same rules and regulations as are by this Code prescribed in relation to issuing attachments and garnishment in other cases.” Before the Code, in 5 Georgia, 531, this Court held that “the property of a foreign corporation, within the limits of this State is liable to be attached under our attachment laws.” At this term of the Court, it was decided in the case of E. W. Wilson vs. The Bank of Louisiana, that a foreign corporation is liable to an attachment, which was levied by service of summons of garnishment. In 41 Georgia, 671, in speaking of the mode of service in suits against domestic corporations, this Court says: “Why should a foreign corporation not stand upon the same footing and be served in the same way? It locates an office here. It appoints an agent here. It makes contracts here, through that agent. In our judgment it may be made a defendant to a suit here and be served by serving its agent just as a Georgia corporation may.”

Here then are authorities that a foreign corporation, whether or not it is doing business in this State, is liable to an attachment* — that one doing business here may be sued and served as a Georgia corporation. Why, then, is it not liable to the garnishment laws? A garnishment is a suit. Its creditor can bring his action for the debt, and there can be no reason, in principle, why one to whom that creditor is indebted may not, by garnishment of the corporation, subject its creditor’s claim to the payment of his debts. A Georgia corporation is not subject to garnishment in any county where suit could not be, brought for the debt it is charged to owe. So it is with the foreign corporation. It is not liable to garnishment except *262 where suit could be brought on the debt it is charged to owe': See Clark vs. Chapman, etc., 45 Georgia, 486.

2. In the case of Elder vs. Whitehead, 25 Georgia, 262, it was decided that an attorney at law is not authorized to make the affidavit in forma pauperis to entitle a party to an appeal without paying costs or giving security. The same reason that controls in cases of appeals applies to a certiorari — the law does not allow it.

Judgment reversed.

How later courts describe this case

No later court has written an explanatory parenthetical about this case yet.

Cited by 11 cases

View all citing references →
1880–1881: 11884–1885: 11888–1889: 11890–1891: 11896–1897: 11898–1899: 11906–1907: 11928–1929: 11936–1937: 21956–1957: 118802026peak 1936 · 2

Relies on it most ⓘ

  1. Morris W. Haft & Bros. v. Wells93 F.2d 991 (10th Cir. 1937)
  2. National Bank of Commerce v. Huntington129 Mass. 444 (1880)
  3. Mooney v. Buford & George Manuf'g Co.72 F. 32 (7th Cir. 1896)
  4. Morse v. Caldwell191 S.E. 479 (Ga. Ct. App. 1937)
  5. Home Ins. Co. v. Dick15 S.W.2d 1028 (Tex. Comm'n App. 1929)
  6. Cathcart v. Cincinnati, Hamilton & Dayton Railway Co.33 S.E. 875 (Ga. 1899)

Most recent

  1. Carson v. Automobile Financing, Inc.99 S.E.2d 903 (Ga. Ct. App. 1957)
  2. Morris W. Haft & Bros. v. Wells93 F.2d 991 (10th Cir. 1937)
  3. Morse v. Caldwell191 S.E. 479 (Ga. Ct. App. 1937)
  4. Home Ins. Co. v. Dick15 S.W.2d 1028 (Tex. Comm'n App. 1929)
  5. Pacific Selling Co. v. Albright-Prior Co.59 S.E. 468 (Ga. Ct. App. 1907)
  6. Cathcart v. Cincinnati, Hamilton & Dayton Railway Co.33 S.E. 875 (Ga. 1899)

Citing references are not a citator: they show that a later opinion cites this case, not whether it followed, distinguished, or overruled it. Check negative history before relying on this case.

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