Myer v. Liverpool, London & Globe Insurance

Bartol, C. J.,

delivered the opinion of the Court.

The appellants, citizens of Maryland, sued out of the Superior Court of Baltimore City, an attachment on warrant against Gr. W. Bittinger & Brother as non-residents of Maryland, and who were residents of Chicago; and caused the attachment to be laid in the hands of the L., L. and Gr. Insurance Company as garnishee; the same being a corporation created by the laws of Great Britain, the service of the attachment process was made upon the agent of the Company in Baltimore, and its purpose was to attach funds alleged to be due from the Insurance Company to Bittinger & Bro., for a loss which occurred by the great fire in Chicago, upon goods of Bittinger & Brother in their store in Chicago; under a policy of insurance which had been issued by the Insurance Company at the office of its agent in Chicago.

Upon the return of the writ N. Eisendrath, a citizen of Chicago intervened by petition, claiming the insurance money, by virtue of an assignment to him from Bittinger & Bro.: and moved the Court to quash the sheriff’s return, making the Insurance Company garnishee.

*600 The Company also, hy its counsel, made the same motion.

The facts as we have recited them, being admitted, the Superior Court ordered the return to be quashed; and we think there can be no doubt or question of the correctness of the judgment.

The Insurance Company was not liable to garnishment in this State, with respect to its liability upon the policy of insurance made to Bittinger & Brother.

The Act of 1868, ch. 411, sec. 211, provides that, “suits against a foreign corporation, exercising franchises in this State, may be brought by a resident of this State, for any cause of action; and by a plaintiff, not a resident of tbis State, when the cause of action has arisen, or the subject of the action shall be situated in this State.”

To bring a case within the first clause, the liability sought to be enforced must be a direct liability to the resident plaintiff, such is not the present case; there is no debt or liability of the Insurance Company to the appellants. The object of this suit is to recover from the garnishee, the debt due the plaintiffs from Bittinger & Bro. In order to accomplish this result it is necessary to establish and enforce the payment of an alleged debt due from the company to Bittinger & Bro. We do not doubt that a foreign corporation exercising its franchises in this State, may be subjected to the process of garnishment, where it holds property or credits of the debtor, for which the debtor might sue in our Courts. It is well settled that the plaintiff in attachment, as against the garnishee is subrogated to the rights of the debtor, and can recover only by the same right and to the same extent, as the debtor might recover, if he were suing the garnishee.

It is very clear that the appellants cannot, by process of attachment, recover from the Insurance Company, upon its contract with Bittinger & Bro., which contract these last could not themselves enforce in the Courts of Maryland.

*601 This proposition is very well expressed by Dixon, Ch. J., in Brause vs. The New England F. I. Co., 21 Wis., 509 , (cited by the appellants,) “Foreign corporations are subject to process of garnishment, in all cases, lohere an original action may be commenced against them, in the Courts of this State, to recover the debt, in respect of which the process of garnishment is served.”

Now Bittinger & Bro., could not sue the company in Maryland; because they are non-residents, and the contract of insurance was made in Chicago ; and by the words of the Act of 1868 before cited, a foreign corporation is subjected to a suit by a non-resident, only “ when the cause of action has arisen, or the subject of the action is situated in this State.”

It follows that this attachment cannot be maintained against the company, in respect to its liability on the policy of insurance. The same not being a cause of action, upon which it can be sued in the Courts of this State.

Such in our judgment is the true construction and effect of the Act of 1868, ch. 471, secs. 209, 210 and 211.

We do not deem it material to refer to the power of attorney from the company given to their agent in Baltimore, in compliance with the Act of 1870, ch. 433, authorizing him to accept service of legal process, &c., because we treat the case as if the service had been upon the company ; so far as the validity and effect of the process is concerned. But it is still a foreign corporation and must be so treated, in determining its liability to suit under the Act of Assembly.

Some stress was laid in the argument of the appellants, upon the admission made in the case, “that at the time the attachment was laid, and the garnishment made, and prior thereto, a loss had occurred under the policies of insurance, issued by the company to Bittinger & Bro.”

But that admission in no manner affects the question. Our judgment rests upon the proposition, that the coin *602 pany is not liable to garnishment in this State, with respect to their liability upon the policies to Bittinger & Brother.

(Decided 25th June, 1874.)

Order affirmed.