« AnteriorContinuar »
already seen,' a domestic corporation within each of the States. Such a corporation is a resident of each of such States, for the purposes of the ordinary jurisdiction of its courts, and conse. quently may be subjected to garnishment in any one of them, provided the situs of the debt is there, though its principal office or place of business be not there.?
8 7818. Answer of the Garnishee. — The rule of the com. mon law being that a corporation could not speak, nay even whisper, except by its corporate seal, it followed that, where this rule was adhered to, a corporation proceeded against as garnishee could answer only under its corporate seal.' But the general disuse and abolition of corporate seals has rendered this rule obsolete, and it is believed that in such a case the corporation may answer without the use of its seal, by any authorized agent.'
· Ante, $$ 47, 319, 320, 688, 7438, official action by a corporation, for, 7452, 7472, 7490, 7799; post, $$ 8012, at common law, corporate acts were 8020, 8128.
performed under the seal of the cor: Drake Attach., 5th ed., § 479; poration. Garnishment is a species Mahaney v. Kephart, 15 W. Va. 609, of attachment, and the purging of 625; Smith v. Boston &c. Railroad, 33 the conscience of some one having N. H. 337. See also Bolton v. Penn- knowledge of the facts, is necessary to sylvania Co., 88 Pa. St. 261.
its successful administration. Hence, * Ante, $ 5044, note 2, p. 3766. the legislative change, by which a
• Baltimore &c. R. Co. v. Galla- sworn personal answer is secured. hue, 12 Gratt. (Va.) 655; 8. c. 65 Am. And, under this statute, corporations Dec, 254.
'may do and be dealt with, in the • Statutes also exist changing this same manner as if they were natural principle, such as the following in persons'; that is, they may be reAlabama: “The provisions of this quired to answer orally, to have their chapter are applicable to all private answers rejected, if they refuse to corporations, and all affidavits re- answer when so ordered, and to have quired to be made under its provi- judgment rendered against them for sions may be made by the president, want of an answer. The answer may cashier, secretary, or any other duly be made by the president, cashier, authorized agent of such corporation; secretary, or any other duly authorand such corporation may do and be ized agent of such corporation.' The dealt with under its provisions in the legislature cannot be supposed to game manner as if they were natural have intended that the corporation persons." Ala. Code, 8 3267. “This,' may, at its mere pleasure, authorize said Stone, C. J., “is manifestly a one of the named officers, or any other change of the common-law mode of agent it may appoint, to attend and
8 7819. Relief in Equity against Garnishee. - It is a principle of equity jurisprudence that equity will not relieve a party against a judgment recovered against him at law, unless he was prevented from making his defense by circumstances not necessary to be here stated, but “unmixed with negligence or fault on his part.”. For the purposes of this rule the negligence of the agent through whom the judgment-debtor acted in making his defense is imputable to him. Therefore, the negligence of an officer of a corporation, in allowing a judgment to be rendered against the corporation as garnishee, when the debt has been previously assigned to another party, and notice thereof has been given to another officer, will exclude such corporation from relief in equity against the judgment.?
§ 7820. Other Matters Relating to the Garnishment of Corporations. - A number of other matters, depending mostly upon local statutes, will now be referred to, chiefly in the notes. The fact that the money is payable on the draft of the creditor or depositor upon giving a certain notice, as is usual where money is deposited at interest in a savings bank, does not prevent his creditor from seizing it by garnishment although
make answer for the corporation. It against as garnishee in a court of a might select an agent with inten- justice of the peace in a different towntional reference to his want of knowl- ship from that in which the principal edge of the facts about which he is to business office of the corporation is be interrogated. The intention was, situated, may transmit by mail its disthat the answer should be made by closure verified by the oath of its some person cogoizant of the facts, proper officer. Whitworth v. Pelton, whether that person was president, 81 Mich. 98; 8. C. 45 N. W. Rep. 500. cashier, secretary, or some other Compelling an answer under Alabama agent of the corporation. A failure to statute by attachment or judgment nisi: answer by some officer or agent who Ex parte Cincinnati &c. R. Co., 78 can answer knowingly, would author- Ala. 258. judgment for want of an answer,
· Foster v. Wood, 6 Johns. Ch. (N. subject to be made final as in other Y.) 87, 89; Marine Ins. Co. v. Hodgcases.” Ex parte Cincinnati &c. R. son, 7 Cranch (U. S.), 332; Bateman Co., 78 Ala. 258. Under statutes of v. Willoe, 1 Sch. & Lef. 201; Slack v. Michigan (How. Mich. Stat., g 8055, Wood, 9 Gratt. (Va.) 40. as amended by Mich. Pub. Acts · Richmond Enquirer Co. v. Rob1885, p. 240), a corporation proceeded ,
the notice has not been given.' It has been held in Missouri that the validity of a conveyance may be tried in a proceeding by garnishment in a court of law. Extending this doctrine, it is held that the question of the validity of a transfer of the assets of a corporation, alleged to have been made in fraud of creditors, may be tried in a proceeding by garnishment.'
· Clapp v. Hancock Bank, 1 Allen corporations, showing service on the (Mass.), 394.
within named garnishee,” fatally de• Lee v. Tabor, 8 Mo. 322; Lack- fective: Sun Mut. Ins. Co. v. Seeligland v. Garesche, 56 Mo. 267.
son, 59 Tex. 3, 7. The court say that Eyerman v. Krieckhaus, 7 Mo. “such a return is not sufficient upon App. 455. Garnishment of debt due an ordinary citation, and is equally to two corporations jointly, evidenced defective as a return to a citation in by note or draft alleged to have been garnishment”: Citing Graves v. Robtransferred in fraud of creditors: Hum- ertson, 22 Tex. 130; Thomason 0. phreys v. Atlantic Milling Co., 98 Mo. Bishop, 24 Tex. 302; Ryan v. Martin, 542; 8. c. 10 8. W. Rep. 140. That 29 Tex. 412. Attaching by garnishthe affidavit must state that the gar- ment the withdrawal value of shares nisbee is a corporation, or a partner in co-operative bank: Atwood o. Duship, etc., see Insurance Co. v. Fried- mas, 149 Mass. 167; 8. c. 21 N. E. Rep. man, 74 Tex. 56. Return on the writ 236; 3 L. R. A. 416. of garnishment directed against two
MANDAMUS AGAINST CORPORATIONS. SECTION
SECTION 7826. Mandamus against corporations
formance of discretionary to compel performance of
acts. public duties.
7830. Who apply for the writ: plain7827. When not issued to compel the
tiff in the action. performance of public du- 7831. Against corporation in corporate
ties. 7828. Doctrine that the public duty 7832. Corporation may appeal where must be enjoined by statute.
the writ runs against its offi7829. Does not lie to compel the per
8 7826. Mandamus against Corporations to compel Performance of Public Duties. — A writ of mandamus will be issued to compel a corporation to perform a public duty, where the duty is plainly prescribed by a mandatory statute, where there is clear proof of a breach of that duty, and where there is no other adequate legal remedy to compel its performance.' Thus, mandamus lies to enforce a provision in the charter of a railroad company requiring it to maintain its railroad in a con
1 "Where the charter of a corpo perfect legal obligation.” Ibid.; citration, or the general statute in force ing Ex parte Napier, 18 Q. B. 692, 694. and applicable to the subject, imposes “The right and obligation are necesa specific duty, either in terms or by sarily correlative; if there be no oblifair and reasonable construction and gation, there is no right.” Ibid. Man. implication, and there is no specific damus lies where there is no other or adequate remedy, the writ of man- remedy at law, and the fact of there damus will be awarded.” 1 Redf, on being a remedy in equity furnishes no Railw. (4th ed.) 644; quoted with ap- objection to the remedy by mandamus; proval in State v. Southern Minn. R. nor is it an objection that the respondCo., 18 Minn. 40, 41. “But the writent may be punished for omitting to will not be awarded, unless the right do the act to compel which the mansought to be enforced is a complete and damus is sought. People v. New York, perfect legal right, and, of course, the 10 Wend. (N. Y.) 393. reciprocal obligation a complete and
tinuous line;' or to run its cars to a certain point on tide water;: or to compel the Union Pacific Railroad Company to operate its line to Council Bluffs, in the State of Iowa, instead of aking its eastern terminus at Omaha, in the State of Nebraska ;: or to compel a railroad company to build and keep in proper repair, bridges where its road crosses a public highway;t or to reconstruct a public road which it has occupied with its railroad tracks;6 or to remove a bridge constructed across a navi. gable stream without a draw, and in lieu thereof to construct and maintain therein a bridge with a draw, for the passage of vessels in compliance with the governing statute;or to perform the statutory duty of constructing and maintaining a farm crossing for the benefit of a private owner;' or to compel a canal company to bridge a canal over a private way, which it bas cut off; 8 or to compel a railroad company to run all its passenger trains to a station which it has once located and used, in a town made a terminal point by its charter, which town is a county seat;' or to maintain a station in a certain town where there is a clear and strong case of public necessity;"' or to restore to its former usefulness a public highway which it has occupied with its tracks;" or to erect fences as
1 Union Pac. R. Co. v. Hall, 91 ' State v. Chicago &c. R. Co., 79 U. S. 343.
Wis. 259; 8. C. 12 L. R. A. 180; 48 • State v. Hartford &c. R. Co., 29 N. W. Rep. 243. Here again, the Conn. 538.
fact that an action is given for a penUnion Pac. R. Co. v. Hall, 91 alty for failing to perform the duty U. S. 343; affirming 8. C. 4 Dill. (U. does not prevent the remedy by S.) 479.
mandamus, because that is not such • State v. Wilmington Bridge Co., an adequate remedy at law as bars 3 Harr. (Del.) 312; People v. Troy &c. the remedy to compel the performR. Co., 37 How. Pr. (N. Y.) 427; Peo- ance of the duty. Ibid. ple v. Boston &c. R. Co., 70 N. Y. 569. 8 State v. Savannah &c. Canal Co., It is no objection to granting the writ, 26 Ga. 665. in such case, that the company is lia- • People v. Louisville &c. R. Co., ble to indictment for omitting to per- 120 Ill. 48. form the act. Ibid.
10 People v. Chicago &c. R. Co., 130 • Com. v. New York &c. R. Co., Ill. 175. 138 Pa. St. 58; 8. C. 20 Atl. Rep. 951. 11 People v. Dutchess &c. R. Co.,
6 New Orleans &c. R. Co. v. Missis- 58 N. Y. 152. sippi, 112 U. 8. 12.