The plaintiff in error, a Texas corporation, commenced an action
in a court of Oklahoma against the defendant in error, a Missouri
corporation, and caused a writ of attachment to be issued and
levied upon five thousand head of cattle, claimed to be the
property of the Missouri corporation. After such levy, service was
made upon one Pierce as garnishee of the Missouri corporation.
Pierce answered, denying that he was indebted to or held property
of that company, and further set up an agreement under the
provisions of which he had shipped to the pastures of that company
a large number of cattle, the ownership to remain in him until full
payment for the cattle. The cattle levied upon were of this number.
He also set up a notice from one Stoddard of an assignment to him
of the contract by the Missouri company. He further set up that he
was entitled to the possession of the cattle, and asked that they
should be returned to him with damages. With the consent of both
sides, Pierce was appointed receiver of the cattle, and then
service was made upon the Missouri corporation by publication, had
in compliance with requirements of law. Stoddard then filed an
interplea setting up rights of other parties. This was demurred to,
but no action was had on the demurrer. The receiver sold the
cattle, paid himself in full, and reported to the court that he had
a balance in his hands subject to its order. Then the Missouri
company filed pleas to the jurisdiction of the court, and other
pleas were filed, setting up claims to the balance in the
receiver's hands. The Missouri company also set up that Pierce, by
becoming receiver, had abandoned his claim to the ownership of the
cattle. The trial court held that the territorial act authorizing
the probate judge, as to debts not yet due, to order an attachment
in the absence of the district judge was unconstitutional and void,
and ordered the action dismissed. The supreme court of the
territory held that the court below was wrong in this respect, but
affirmed its judgment on the ground that an actual levy was
necessary in order to give the court jurisdiction, and there had
been none. The case being brought here, the Missouri corporation
set up that this Court was without jurisdiction because the
Intervenors in the trial court had not been made parties to the
appeal.
Held:
(1) That it was not necessary to make the intervenors
parties.
(2) That property of the Missouri company had been levied on
under
Page 173 U. S. 85
the writ of attachment, and that the decision of the supreme
court of the territory to the contrary was wrong.
(3) That the Oklahoma statute requiring an affidavit in its
support as a prerequisite to the issuance of a writ of attachment
does not involve the discharge of a judicial function, but is the
performance of a ministerial duty.
(4) That the court acquired jurisdiction of the defendant
corporation by constructive service, by foreign attachment, without
its consent.
(5) That the territorial statute authorizing the issue of a writ
of attachment against the property of a nonresident defendant is
not repugnant to the Fourteenth Amendment to the Constitution.
This action was commenced on July 2, 1895, in the District Court
of Noble County, Oklahoma, 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 five thousand 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, Texas, 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 five thousand dollars 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 ten percent 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,
Page 173 U. S. 86
for account of Pierce, and to apply the proceeds of sale to
payment for the cattle, until fully paid for at the rate of fifteen
dollars 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 was 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.
Page 173 U. S. 87
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 third 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
Page 173 U. S. 88
"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. Miller 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
Page 173 U. S. 89
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 defendant, 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. 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.
MR. JUSTICE WHITE, after making the foregoing statement,
delivered the opinion of the Court.
Page 173 U. S. 90
On the threshold, it is necessary to dispose of a suggestion of
want of jurisdiction made by the appellee. It is based on the
proposition that, as the interveners in the trial court are not
made parties to this appeal, we are without jurisdiction, since the
judgment to be rendered may materially prejudice their rights. But
the interveners did not except to the action of the trial court in
vacating the attachment and dismissing the action. They were not
made parties to the proceedings in error prosecuted from the
judgment of the trial court to the supreme court of the territory.
In that court, the cause was determined without any suggestion, so
far as the record discloses, that the questions arising on the
record could not be decided in the absence of the interveners, and
the supreme court of the territory manifestly assumed that the
interveners were not essential parties to a determination of the
controversy before it, since it passed on the case as presented
without their presence. If their absence was treated by the parties
to the proceedings in the supreme court of the territory as not
affecting the right to a review of the judgment of the trial court,
there can be no reason why we should now hold that the presence of
such interveners is necessary on this appeal, which has solely for
its object a review of the judgment rendered by the supreme court
of the territory. Considering the facts just stated and the further
fact that it is obvious that the rights of the interveners cannot
be prejudiced by a review of the action of the supreme court of the
territory in dismissing the cause for want of jurisdiction, the
motion to dismiss is overruled.
The third ground stated in the plea of the defendant, the
Campbell Company, to the jurisdiction of the court was the one
which the supreme court of the territory found to be well taken,
and upon which it based its affirmance of the judgment quashing the
attachment and dismissing the action for want of jurisdiction. The
reasoning by which the court reached its conclusion was in
substance as follows:
The garnishee, Pierce, answered that he had nothing subject to
garnishment. After doing this, he further answered, setting out an
alleged contract between himself and the defendant,
Page 173 U. S. 91
by which he had agreed to sell and ship to the pastures of the
defendant a certain number of cattle, which agreement had been
carried into execution, the cattle seized under the attachment
being a portion of those shipped in carrying out the contract. The
answer then stated that although the cattle had been thus shipped,
by the terms of the contract, the right to their possession
remained in the garnishee, Pierce, to whom there was a large amount
due, under the contract, for purchase money and expenses. The
answer further stated that the garnishee had been notified of an
assignment by the defendant of its rights under the contract, the
date of this assignment as given being prior in time to the levy of
the attachment. Considering that there had been no traverse by the
plaintiff to the answer of the garnishee within twenty days, as
required by the Oklahoma statute, the court concluded that all the
facts and averments, and the inferences deducible therefrom, stated
in the answer were to be taken as true not only as between the
garnishee and the plaintiff, but also between the plaintiff and the
defendant, in determining whether property of the defendant had
been levied upon under the attachment. Upon this assumption,
finding that the answer of the garnishee established that no
property of the defendant had been levied upon under the
attachment, it thereupon dissolved the attachment, and dismissed
the suit. But this reasoning was fallacious, since it assumed that
because the failure to traverse the answer of the garnishee was
conclusive of his nonliability in the garnishment proceedings, it
was therefore equally so, as between the plaintiff and defendant,
in determining whether the property which had been levied upon
under the attachment belonged to the defendant. But the two
considerations -- the liability of the garnishee under the
proceedings in garnishment and the validity of the levy previously
made under the attachment -- were distinct and different issues.
The section of the Oklahoma statute to which the court referred
(Oklahoma Stat. 1893, sec. 4085) provides that the answer of the
garnishee
"shall in all cases be conclusive of the truth of the facts
therein stated unless the plaintiff shall within twenty days serve
upon the garnishee a notice
Page 173 U. S. 92
in writing that he elects to take issue on his answer."
It however can in reason be construed only as importing that the
facts stated in the answer, unless traversed, should be conclusive
for the purpose of determining whether the garnishee was liable
under the process issued against him, and to which process his
answer was directed.
Indeed, all the facts stated in the "further" answer of the
garnishee were in legal effect substantially irrelevant to the
issue between the plaintiff and the garnishee, since they referred
not to the garnishee's liability to the defendant, but propounded a
distinct and independent claim, which the garnishee asserted
existed in his favor as against the defendant, as a basis on his
part for claiming property which was already in the possession of
the court under the attachment, and held as the property of the
defendant in attachment. This was the view taken by the garnishee
of his rights on the subject, for the answer in the garnishment
concluded simply by asking that the garnishee be discharged from
the proceedings. And on the same day, he intervened in the main
action, and filed his interplea asserting in his behalf a right of
possession to the cattle seized, and demanding damages for their
detention. The judgment below, then, not alone caused the failure
to traverse the answer to conclude the plaintiff as to the issues
which could legally arise on the garnishment -- that is, the
liability of the garnishee thereunder -- but it also made the
failure to traverse operate as a summary and conclusive finding in
favor of the garnishee on his interplea in the action, which was a
wholly independent and distinct proceeding from the garnishment
itself. The reasoning necessarily went further than this, since, by
relation, it caused the answer of the garnishee to become
conclusive between the plaintiff and the defendant, thereby setting
aside the seizure made before the garnishment issued, falsifying
and destroying the return of the sheriff that he had levied upon
the property of the defendant, and in effect decided the case in
favor of the defendant without proof and without a hearing.
Nor can a different conclusion be reached by considering that,
in the further answer of the garnishee, it was stated that
Page 173 U. S. 93
he had been notified of an assignment of the rights of the
defendant, Campbell Company, under the contract, purporting to have
been made prior to the levy of the attachment. This was not
pertinent to the question of the liability of the garnishee under
the garnishment proceedings, and could not operate to conclusively
establish, as between the plaintiff and the defendant or as between
the plaintiff and the alleged assignee, either the verity or the
legal sufficiency of the alleged assignment.
Aside, however, from the foregoing consideration, the record
established a condition of fact which relieved the plaintiff from
the necessity of traversing the answer of the garnishee insofar as
that answer referred to the independent facts substantiating the
intended claim of the garnishee to the right of possession of the
property already under seizure, and which, moreover, estopped the
garnishee, and therefore the defendant, from asserting any right of
possession by reason of the facts alleged in the further answer.
Before the time for traverse had expired, and at the date when a
motion filed by Pierce, as garnishee and interpleader, to discharge
the attachment on the ground of his assumed right of possession
under the contract had been noticed for hearing, the court, by the
consent of plaintiff and the garnishee (the only parties who had up
to that time appeared in the cause), appointed the garnishee,
Pierce, receiver, to dispose at private sale of the cattle which
had been levied upon, to pay from the proceeds the claim of Pierce
by virtue of his contract, and to hold the balance subject to the
final order of the court. Obviously this order and the rights which
Pierce took under it were wholly incompatible with the assumption
that he was entitled to the possession of the property levied upon
as the owner thereof. By the effect of the order, he was to be paid
the full purchase price of the cattle. He could not take the price
and keep the cattle. The situation was this: at the time the
Campbell Company made its motion to dismiss for want of
jurisdiction, the garnishee had taken substantial rights, which had
for their inevitable legal effect to render unnecessary any
traverse of so much of his answer as referred to his rights
Page 173 U. S. 94
under the supposed contract, and which also disposed of his
interplea and claim of individual right to the possession of the
property levied on under the attachment. Yet the result of the
judgment rendered below was to dismiss the action at the instance
of the defendant on the ground of supposed rights vested in the
garnishee, when the garnishee himself had disclaimed or had
abandoned the assertion of such presumed rights.
As the foregoing reasons dispose of the view of the case taken
by the lower court, we confine ourselves to them. Because, however,
we do so, we must not be understood as intimating that the
defendant had the right to assail the jurisdiction of the court, or
question the right of the court to order the giving of notice by
publication, on the ground that it was not the owner of the
property actually levied upon and that the affidavit for
publication was untrue in stating that the defendant had property
within the jurisdiction, when, if it were not such owner, no
prejudice could come to it, as the judgment of the court, from the
nature of the proceeding before it, could necessarily only operate
upon the property levied on. Nor, moreover, must we be considered
as assenting to the construction given by the court to the contract
between the Campbell Company and Pierce, the court, in its recital
of the facts, stating that under the contract, Pierce had a
vendor's lien for the amount of the purchase price upon the cattle
which had been levied upon, but, in the opinion, construing the
contract as not divesting Pierce of the title to the cattle.
Although the court below based its conclusion only upon one of
the grounds taken in the plea of the defendant to the jurisdiction,
it nevertheless, in the course of its opinion, stated that the
whole plea was before it, and that all the grounds therein stated
were open for its consideration. We therefore shall briefly
consider such of the remaining grounds stated in the plea to
jurisdiction as have been urged in argument upon our attention.
1. It is contended that the attachment proceedings were void,
and that the court consequently was without jurisdiction
Page 173 U. S. 95
because the order for attachment was signed by the probate
judge, acting in the absence of the district judge, conformably to
a power to that effect given by the territorial statute. The claim
is that the statute conferring such power upon the probate judge
was repugnant to the organic act and void, for the following
reason: the organic act authorized the establishment of a supreme
court and district courts, to be vested with
"chancery as well as common law jurisdiction and authority for
redress of all wrongs committed against the Constitution or laws of
the United States or of the territory affecting persons or
property."
The grant of common law jurisdiction, it is argued, embraced
authority to issue attachments. Being, then, within the
jurisdiction expressly vested in the courts named, it was
incompetent for the territorial legislature to delegate to the
probate courts, which the organic act authorized to be established,
or to a judge of such a court, any jurisdiction in the premises,
even although the organic act empowered the legislature to define
and limit the jurisdiction to be exercised by probate courts.
A review of this contention is rendered unnecessary because of
the mistaken premise upon which it rests. On the face of the
Oklahoma statute, it is apparent that it is required, as a
prerequisite to the issuance of an attachment, that the affidavit
in support thereof shall simply state the particular ground for
attachment mentioned in the act, and therefore that the granting of
an order for attachment does not involve the discharge of a
judicial function, but merely the performance of a ministerial duty
-- that is, the comparison of the language of the affidavit with
the terms of the statute. The text of the statute is stated in the
margin.
* This statute is a
reproduction
Page 173 U. S. 96
of a statute of Kansas, and in 1884, before the organization of
the Territory of Oklahoma, the Supreme Court of Kansas, in
Buck
v. Panabaker, 32 Kan. 466, had recognized the power of a
probate judge to grant a writ of attachment in cases provided by
law, while it had early held, in
Rayburn v. Bracket, 2
Kan. 227, under a statute containing requirements as to the
statements to be made in the affidavit for attachment like unto
those embodied in the statute of Oklahoma now under consideration,
that the authority vested in an official to grant the writ imposed
a duty simply ministerial in its nature. It is elementary that
where the ground of attachment may be alleged in the language of
the statute, the authority to allow the writ need not be exercised
by the judge of the court, but may be delegated by the legislature
to an official, such as the clerk of the court.
Rayburn v.
Bracket, 2 Kan. 227;
Wheeler v. Farmer, 38 Cal. 203;
Harrison v. King, 9 Ohio St. 388; Drake on Attachments,
7th ed., p. 92. The cases cited and relied upon by counsel as
holding to the contrary do not sustain what is claimed for them. In
some of them,
Reyburn v. Bracket, 2 Kan. 227;
Simon v.
Stetter, 25 Ohio St. 388; and
Harrison v. King, 9
Ohio St. 388, the rule we have stated is upheld; in others,
Morrison v. Lovejoy, 6 Minn. 183, and
Guerin v.
Hunt, 8 Minn. 477, 487, the particular statute under
consideration was construed as requiring, on the part of the
officer allowing the writ, a weighing and determination of the
sufficiency of the proof, while again in others,
Seidentopf v.
Annabel, 6 Neb. 524, and
Howell v. Circuit Judge, 88
Mich. 369, the statute expressly required that the writ should be
allowed by a judge, and hence the clerk of the court was held
incompetent
Page 173 U. S. 97
to issue the writ without the previous authorization of the
order by the court.
Nor does section 3 of the Act of Congress of December 21, 1893,
c. 5, 28 Stat. 20, empowering the supreme court of the territory or
its chief justice to designate any judge to "try" a particular case
in any district where the regular judge is for any reason unable to
hold court, constitute an implied prohibition against the
conferring by the legislature of authority upon one not a judge of
the court in which the main action is pending to perform a
ministerial act like that here considered.
2. It is insisted that
"under the organic act of the territory, the court could not
acquire jurisdiction of the person of the defendant by constructive
service by foreign attachment without its consent."
The section of the organic act referred to requires that all
civil actions shall be brought in the county where a defendant
resides or can be found. In a proceeding by attachment of property,
which is in the nature of an action
in rem, it is
elementary that the defendant is found, to the extent of the
property levied upon, where the property is attached. It would be
an extremely strained construction of the language of the act to
hold that Congress intended to prohibit a remedy universally
pursued -- that of proceeding against the property of nonresidents
in the place in the territory where the property of such
nonresident is found.
3. The only remaining contention to be considered is the claim
that the territorial statute authorizing the issue of an attachment
against the property of a nonresident defendant in the case of an
alleged fraudulent disposition of property is repugnant to the
Fourteenth Amendment to the Constitution of the United States, and
in conflict with the Civil Rights Act. The law of the territory, it
is said, in case of an attachment, for the cause stated, against a
resident of the territory requires the giving of a bond by the
plaintiff in attachment as a condition for the issue of the writ,
while it has been construed to make no such requirement in the case
of an attachment against a nonresident. This, it is argued,
Page 173 U. S. 98
is a discrimination against a nonresident, does not afford due
process of law, and denies the equal protection of the laws. The
elementary doctrine is not denied that, for the purposes of the
remedy by attachment, the legislative authority of a state or
territory may classify residents in one class and nonresidents in
another, but it is insisted that where nonresidents
"are not capable of separate identification from residents by
any facts or circumstances other than that they are nonresidents --
that is, when the fact of nonresidence is their only distinguishing
feature -- the laws of a state or territory cannot treat them, to
their prejudice, upon that fact, as a basis of classification."
When the exception thus stated is put in juxtaposition with the
concession that there is such a difference between the residents of
a state or territory and nonresidents as to justify their being
placed into distinct classes for the purpose of the process of
attachment, it becomes at once clear that the exception to the rule
which the argument attempts to make is but a denial, by
indirection, of the legislative power to classify, which it is
avowed the exception does not question. The argument, in substance,
is that where a bond is required as a prerequisite to the issue of
an attachment against a resident, an unlawful discrimination is
produced by permitting process of attachment against a nonresident
without giving a like bond. But the difference between exacting a
bond in the one case and not in the other is nothing like as great
as that which arises from allowing processes of attachment against
a nonresident and not permitting such process against a resident in
any case. That the distinction between a resident and a nonresident
is so broad as to authorize a classification in accordance with the
suggestion just made is conceded, and, if it were not, is obvious.
The reasoning, then, is that although the difference between the
two classes is adequate to support the allowance of the remedy in
one case and its absolute denial in the other, yet that the
distinction between the two is not wide enough to justify allowing
the remedy in both cases, but accompanying it in one instance by a
more onerous prerequisite than is
Page 173 U. S. 99
exacted in the other. The power, however, to grant in the one
and deny in the other of necessity embraces the right, if it be
allowed in both, to impose upon the one a condition not required in
the other, for the lesser is necessarily contained in the greater
power. The misconception consists in conceding, on the one hand,
the power to classify residents and nonresidents for the purpose of
the writ of attachment, and then from this concession to argue that
the power does not exist unless there be something in the cause of
action for which the attachment is allowed to be issued which
justifies the classification. As, however, the classification
depends upon residence and nonresidence, and not upon the cause of
action, the attempted distinction is without merit.
The foregoing considerations dispose not only of the grounds
passed upon by the court below, but those pressed upon our
attention and which were subject to review in that court, and as
from them we conclude there was error in the judgment of the lower
court, its judgment must be
Reversed, and the case be remanded for further proceedings
in conformity to this opinion.
*
"SEC. 4120. Where a debtor has sold, conveyed, or otherwise
disposed of his property with the fraudulent intent to cheat or
defraud his creditors or to hinder or delay the collection of their
debts, or is about to make such sale or conveyance or disposition
of his property with such fraudulent intent, or is about to remove
his property or a material part thereof with the intent or to the
effect of cheating or defrauding his creditors or of hindering them
or delaying them in the collection of their debts, a creditor may
bring an action on his claim before it is due and have an
attachment against the property of the same debtor."
"SEC. 4121. The attachment authorized in the last section may be
granted by the court in which the action is brought or by the judge
thereof, or, in his absence from the county, by the probate judge
of the county in which the action is brought, but, before such
action shall be brought or such attachment shall be granted, the
plaintiff or his agent or attorney shall make an oath in writing
showing the nature and amount of the plaintiff's claim, that it is
just, when the same will become due, and the existence of some one
of the grounds for an attachment enumerated in the preceding
section."
