The Salt Lake herald. [volume] (Salt Lake City [Utah]) 1870-1909, 1906-10-12
District Court Rules Against
luke-PrincipIe Applies
to Many Cases.
DURAND SUITS AFFECTED
RULING is GIVEN BY THE FOUR
JUDGES.

~-SOA- y NoSCiNoy Tic cast VI w dlkeI
Bros. & Fyler company against
Charles Ravens. defendant. and the
Chicago & Northwestern Railroad
company, garnishee. 1t settles the mat
ter Of garnishment proceedings where
in neither the defendent against whom
the judgment is rendered nor the funds
attempted to be garnisheed are within
the state. The case was heard en-
banc by the four judges of the dis
trict court, and they decided that
garnishment could not be made. Upon
this decision depended all the cases
filed against Francis G. Luke and
Charles T. Durand, Murray's notorious
justice Of the peace.
This case was brought by Manager
Francis G.. Luke of the Merchants
Protective association. Judgment was
rendered against Ravens in the justice
court court Of Gustave Kroeger in
Salt Lake in 1901. Ravens left the
state and secured employment with
the Chicago & Northwestern in the
east. Luke filed garnishment proceed
ings upon the agent of the railroad in
this city and tied up $50 in wages COM
ing to Ravens. The company appealed
to the district court, and the decision
yesterday was given in favor of the
railroad company, which is the gar
niShee
There are now fifteen actions against
Durand and Luke on garnishments
made out of the state, which are af-
fected by this decision. The decision
handed down yesterday will probably
hold good in the judgments for gar
nishment rendered by Durand, declar-
ing them null and void.
Decision by the Judges.
The decision follows:
The garnishee in this case is a corpora
ton not organized under the laws of this
state and not operating a railroad within
this state. 1t has an agent of the sort
commonly called a commercial agent,
who solicits business for il, to be under
taken and carried out by that corpora
ton upon its lines of railroad in other
states
There was no personal service upon the
defendant. who was an employe of the
Chicago e. Northwestern Railway COM
pany the garniShee, in Michigan, per-
forming his duties there, with his wages
payable in the state of Michigan The
garniShment was served on the CONNER
cial agent of the garnishee in this state.
The cases upon which the plaintiff re-
lies and among others G. r. l-P. Ry.
vs.. Sturm. IA L. s. no. and Harris
Balk. 19S n. S. 215, have been carefully
considered. The article in 81 Central Law
Journal, 265 entitled Exit of the Doc
trine of Situs." has been filed as a brief
and also considered.
1t seems elementary, aside from the
cloud Of sOphistries. which have been
woven around the discussion of cases of
this character. that the defendant must
either be personally within this state or
have property situated within the state in
order to afford foundation for a judg-
ment against them.
We think the true doctrine on principle
is set forth after a very able discussion
by the supreme court of appeals of West
Virginia in the case of Pennsylvania Rail-
road Co. vs.. Rogers, % w. Va, $50; 81
l. R. A lis.
case above cited, brief extracts of which
have been given, is unanswerable. AS
there pointed out, the opinion of the SUI
preme court of the United States in G. r.
not inconsistent with the views SC ex-
pressed. COZ w. Va In that case the
Chicago, Rock Island & Pacific Railway
company garnished in an Iowa court was
a corporation of the state of Iowa and
the service was made upon it in the state
Of its domicile, which is not the fact in
this case
The argument in favor of the conclusion
reached by this court is also well stated
in the opinion of the supreme court of
Kansas in the case of Missouri Pacific
Railway Co. VS.. Sharritt, 40 Kans. 375; 22
Pac. 430.
Utah Case Cited.
The only opinion of our own supreme
tained in few lines in the case Of Losee
VS. Mccarthy, Utah 529. The decision
is made to rest solely upon the PROPOSE
ton that the Union Pacific Railroad COM
pany, the garnishee in that case was
operating its road and doing business
within the territory of Utah. Such is not
the fact in this case.
Some courts have entertained the idea
that mere debt is OF so intangible a
character that il has not actual situs any
where and therefore can be seized by fol-
lowing one who owes the debtor wher-
ever he may go. regardless of all written
instructions. The injurious effect of at
tempting TO found principle upon that
notion were not so apparent when the
person only of the debtor was to be fol-
lowed. He seldom left his domicile and
could in any event be in but one place
at time. Under conditions of the pres
ent day corporations. such as the gar
nishee, have what are called commercial
agencies In nearly every important citv
in the United States and frequently IN
Europe To ADOPT doctrine which would
give the creditor practically the option of
selecting any forum he pieases where
such an agent could be found to earnish
10 matter how remote from both creditor
and debtor, would frequently inflict great
hardship.
When the amounts involved are small.
the hardship of defending a case in some
remote region would be great. and in
many, If not the majority of cases. wouid
amount to a practical denial to the de-
PENDANT sued of his day in court
whether he had a just defense or not II
would generally deprive him of his rights
OF exemption Such a doctrine would he
pernicious in the extreme in its practicaI
application as well vicious in princj
pie. To quote the language of the su
preme court of Wisconsin with reference
to different matter, 1.-THE unanimitv
with which this view is stated nv Some
courts Is perhaps only equalled by the
paucity of reason by which 1t is sun
ported
Neunemaker VS.. State, los N w 62s
The majority of the judges concur In
this opinion Judgment will be for the
garnishee.
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