Folkes v. Central of Georgia Ry. Co. , 202 Ala. 376 ( 1918 )

Upon this application counsel for appellee insist that the exact question here involved was determined in its favor by the Supreme Court of Mississippi in the case of Fisher v. Pac. Mut. Life Ins. Co., 112 Miss. 30, 72 So. 846.

This case has been carefully examined by us, and we do not find that the question here involved was there determined. The gist of the decision was simply to the effect that the courts of Mississippi would give full effect and validity to the injunction obtained against the plaintiff in the state of Tennessee, where the plaintiff resided, and the opinion is unquestionably based upon sound ground. While it is true the opinion contains an expression which supports the contention of appellee in this cause, yet that expression was but a dictum, and in no wise necessary to a decision thereof. We are therefore of the opinion that the Fisher Case cannot be referred to as an authority against the conclusion here reached.

Nor are we impressed with the insistence that in this decision we have worked any discrimination against the appellee of which he can complain, nor that what is here decided in any manner conflicts with the holding of the court in So. Rwy. Co. v. Greene, 216 U.S. 400, 30 Sup. Ct. 287, 54 L.Ed. 536, 17 Ann. Cas. 1247.

The rule announced in the Weaver Case is but the application of a rule of a court of equity established and extended for the benefit of the citizens of the state. Appellee is domiciled within the state of Georgia, and, as previously shown, is presumed to be a citizen of that state.

This is a transitory action, and, so far as legal rights are concerned, it has been held that the state is without power to restrict the plaintiff in such action to the courts of Alabama in the prosecution of such a suit (W. U. Tel. Co. v. Howington, 73 So. 550;² Tenn. Coal Co. v. George, 233 U.S. 354,34 Sup. Ct. 587, 58 L.Ed. 997, L.R.A. 1916D, 685); and the above-stated rule should be carefully guarded in its application lest it be abused.

It is also well settled that without legislative enactment a foreign corporation could not be sued outside of its domicile, as there was no provision for service upon it. Pullman Palace Car Co. v. Harrison, 122 Ala. 149, 25 So. 697, 82 Am. St. Rep. 68. So that, while the appellee in this case is subject to suit in Alabama, as is alleged in the bill, it is so subject only by virtue of legislative enactment; and therefore any residential status should be viewed from that standpoint.

If the rule is to be extended to the appellee in the instant case, then, of course, it must be uniform, and extend to all foreign corporations authorized to do business in this state. The practical operation of such a rule would in many cases work injustice to the resident citizens of Alabama. There are doubtless numerous foreign corporations fully authorized to do business in Alabama and so engaged, yet which have not sufficient property subject to execution and sale out of which a judgment could be collected. The enforcement of such a rule in cases of that character would require the resident citizen of Alabama to obtain a judgment uncollectible in this state, and force him to sue upon the same in a foreign jurisdiction, and thus place him to the inconvenience and expense of two suits for the satisfaction of a single claim. The rule, after all, is but a privilege extended by the state to its citizens to prevent one citizen from obtaining an undue advantage over another; and we think there can be no question of the right of the state to decline to extend the rule to foreign corporations, although by legislative enactment authorized to do business in the state. Blake v. McClung, 172 U.S. 241,19 Sup. Ct. 165, 43 L.Ed. 432.

The appellee seeks to enjoin a suit by a citizen of this state against it in the state of its domicile, and of course, the decision here is confined to the situation thus presented; and we see nothing out of keeping with sound reasoning and the ends of justice in declining to forbid a suit being prosecuted against it in the forum of its domicile, where alone it could be sued, but for the constitutional and statutory provisions of this state.

We are not persuaded that the rule announced in the Weaver Case should be extended to embrace the situation here presented, and the application will be denied.

ANDERSON, C. J., and MAYFIELD and THOMAS, JJ., concur in the opinion; McCLELLAN, J., concurs in the conclusion; SAYRE and SOMERVILLE, JJ., dissent.

² 198 Ala. 311.