Central Loan Trust Company v. Campbell Commission Company
This action was commenced on July 2, 1895, in the district court of Noble county, Okl., by the Central Loan & Trust Company, a Texas corporation, against the Campbell Commission Company, a Missouri corporation, to recover upon certain promissory notes not then due. Upon affidavit a writ of attachment issued, and was levied upon 5,000 head of cattle, as the property of the Campbell Company. After such levy, a summons in garnishment was served upon one A. H. Pierce, who answered that he was not indebted to, and held no property owned by, or in which the Campbell Company had an interest. As 'a further and special answer' Pierce set out a written agreement entered into between himself and the Campbell Company for the sale and shipment by him to that company of a specified number of cattle. This agreement provided that Pierce was to deliver at Pierce Station, Tex., a designated number of cattle, which the company agreed to ship to its pastures in the Indian Territory 'at its own risk, and pay all freight and other expenses,' the expenses to embrace the wages of a man to be put by Pierce with the cattle, 'to represent his interest in said cattle.' It was recited in the contract that $5,000 had been paid at the signing of the agreement 'as part of the purchase price,' and the company further agreed to pay to Pierce interest at the rate of 10 per cent. per annum on all unpaid amounts from the date of shipment of the cattle until full and final payment in accordance with the contract. The company also agreed to ship the cattle to market during the summer or fall of 1895, for account of Pierce, and to apply the proceeds of sale to payment for the cattle, until fully paid for, at the rate of $15 per head; and it was also stipulated that title and ownership of the cattle should be and remain in Pierce until such payment.

In said 'further and special answer' it was also alleged that the cattle upon which the writ of attachment had been levied formed part of the number covered by the contract above referred to, and had been shipped by Pierce to the pastures of the Campbell Company, but that they had never ceased to continue in the possession of Pierce; it being further claimed that the cattle were subject to a charge for unpaid purchase money, expenses for their care and keeping, etc. The answer further stated that notice had been received by Pierce from one T. A. Stoddard, trustee, that an assignment had been made of said contract to him by the Campbell Company, and a copy of the alleged assignment was annexed. It purported to 'sell and assign all the title and interest in and to' the contract between Pierce and the Campbell Company, any profit which might be derived by Stoddard from carrying the contract into final execution to be applied by him as trustee to the payment, pro rata, of certain described notes. The garnishee also declared that on July 12, 1895, receivers had been appointed of the assets of the Campbell Company, and the answer concluded with asking that Pierce might be discharged as garnishee.

With the answer to the garnishment there was also filed by Pierce what w § termed an interplea. It was therein, in substance, averred that the cattle which had been levied upon were wrongfully detained from Pierce; that he was entitled to their immediate possession; and he prayed that on the hearing of the interplea judgment might be awarded for the return of cattle, with damages for their alleged wrongful seizure and detention. A motion was also filed, on behalf of Pierce, 'as garnishee and interpleader,' to discharge the attachment, substantially on the ground that the cattle belonged to Pierce, and that the latter was not indebted to the Campbell Company, and held none of its property.

On the date when this motion came on for hearing, the plaintiff filed an application for the appointment of Pierce as receiver, 'to take charge of the property attached in this action, and sell the same in accordance with a certain written contract,' attached as an exhibit, being the contract referred to in the answer of Pierce to the garnishment. The service of the writ of attachment was averred, and it was stated that the cattle which had been levied upon had been 'under the care, custody, and control of the sheriff of Noble county since the 3d day of July, 1895, when said attachment was levied'; and it was further averred 'that said A. H. Pierce claims no interest in said property or this suit except as set forth in said contract hereto attached, and is entirely friendly to all parties concerned in said action, and, as plaintiff and its attorneys are informed and believe, the appointment of said A. H. Pierce as receiver herein would be entirely satisfactory to the defendant and all other parties in said action.'

The pecuniary responsibility of Pierce, and his large experience as a dealer and raiser and shipper of cattle, and other circumstances, were set forth as warranting his appointment without bond to sell the cattle in the usual commercial way, instead of at public sale, and the application concluded as follows:

'That it would be to the interest of all parties concerned to have A. H. Pierce appointed receiver to take charge of said steers, and sell the same to the best advantage, accounting to the court for all sales, and, after satisfying his claim under said contract, hold the money remaining in his hands subject to the final order of this court.

'That said A. H. Pierce has already shipped from five thousand head of steers so seized in attachment about three hundred and sixty head, and sold the same in market, and now holds the proceeds thereof, which should be accounted for by said A. H. Pierce along with other accounts of shipments.'

An order appointing the receiver was thereupon made, the consent of the attorneys both of Pierce and the plaintiff being noted thereon, and Pierce qualified as receiver.

A summons which had been issued having been returned 'Defendant not found,' publication was had in compliance with the legal requirements.

Subsequently Stoddard, trustee, filed an interplea. Therein it was averred that the contract between Pierce and the Cambell Company had been made by that company for account of a firm styled George W. Miller & Son, and had been entered into in the name of the Campbell Company in order to secure that company for advances which had been made by it to Miller & Son; that under an assignment by the Campbell Company to Stoddard he was entitled to the proceeds of the sale of the cattle in the hands of the receiver after the claim of Pierce had been paid. Plaintiff demurred to this interplea on November 5, 1895, but no action was ever had thereon.

A report was filed by the receiver, showing that he had sold the cattle, and from the proceeds had satisfied in full his claim under the contract of September, 1894, and that a balance was in his hands, subject to the order of the court. Thereafter the Campbell Company filed a 'plea to the jurisdiction,' and subsequently filed an amended plea, which stated seven grounds why the court was without jurisdiction, all of which will be hereafter referred to.

After this George W. Mill r and J. C. Miller filed an interplea in the action, claiming that they were the real contractors with Pierce in the agreement of September 8, 1894, and averred their ownership of the cattle, and that, if the contract had been assigned to Stoddard, it was done without their authority, and was void. It was prayed that the proceeds of the cattle be paid to them after the payment to Pierce of the amount of his claim. No issue was taken on this interplea.

On the same date that the Miller interplea was filed, the plaintiff filed an answer to the interplea of A. H. Pierce, averring, among other things, that Pierce, as a result of the receivership proceedings, had waived and abandoned all his claim in and to the ownership of the cattle levied on under the attachment. On December 16, 1895, the plea of the Campbell Company to the jurisdiction was heard, upon the record, over objection and exception by plaintiff. The court overruled all the grounds assigned in the plea except the second, which asserted that there was a want of power in the probate judge to issue an order for attachment. As to such ground it held that the act of the territorial assembly of Oklahoma, conferring power upon the probate judge, as to debts not yet due, to order an attachment in the absence of the district judge from the county, was unconstitutional and void. It thereupon concluded that all the proceedings were void, the attachment was quashed, and the suit dismissed for want of jurisdiction, without prejudice to the Campbell Company. The Campbell Company excepted to the action of the court in overruling all the grounds of its plea to the jurisdiction but that referring to the power of the probate judge, and the plaintiff excepted to the action of the court holding that there was a want of power in the probate judge.

Error was prosecuted to the supreme court of the territory. That court, while concluding that the lower court was wrong in deciding that the probate judge was without authority to allow the attachment, yet affirmed the judgment below on the ground that, as an actual levy on the property of the defenant, Campbell Company, was necessary to give the lower court jurisdiction to determine the cause, and as there had been in law no such levy, therefore the court below was without jurisdiction, and had correctly dismissed the suit. 49 Pac. 48. The reasoning of the court, in effect, sustained the third ground of the motion to quash the attachment made by the Campbell Company. A petition for rehearing having been overruled, the cause was brought to this court.

W. D. Williams, for appellant.

John W. Shartel, for appellee.

Mr. Justice WHITE, after making the foregoing statement, delivered the opinion of the court. 

Notes
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