Boarman v. Patterson

1 Gill 372 | Md. | 1843

Dorsey, J.,

delivered the opinion of this court.

We cannot say the county court erred in overruling the motion, there made, to quash the attachment. The appellant never appeared, or made such motion, until after the judgment of condemnation was rendered by the court. Instead therefore of an application to quash the writ of attachment, his motion should have been first to strike out the judgment, and then to quash the attachment. Until the judgment was stricken out the court coulcl, with no consistency, be asked to quash the writ of attachment, upon which it was founded. But, waving this objection to the regularity of the appellant’s motion, let us enquire whether the reasons assigned by him were such as would have justified the court in gratifying his request?

The first reason assigned as a ground for quashing the attachment, is that “in the suit are embraced different causes of action, some of which ought to have been sued upon in assumpsit, and other thereof in debt, and one thereof in covenant.” The decision of this court, in the case of Dawson vs. Brown, 12 Gill & John. 53, is decisive upon this point. It is there decided that it is not necessary that a creditor should recover the whole amount of his claim for which the attachment issued. The attachment may be good and available to him for a part of his claim, though wholly unavailable as to the residue. "Without the short note showing the plaintiff’s cause of action, and the issuing thereon of a capias ad respondendum or a summons, (as the case maybe,) the proceedings in the attachment would be wholly irregular. Nothing ought to be recovered by a condemnation of the property attached, which was not recoverable from the defendant, had he given special bail and appeared to the process issued against him. The short note states the cause of action to be in assumpsit, and the writ issued was in trespass on the case. For all that part of the appellee’s claim, therefore, for the recovery of which an action of debt or covenant was the only remedy, the present proceedings in attachment furnished no remedy. Their short note or declaration, by no amendment which could have been made to it, could be made to embrace claims recoverable only in debt or covenant. It must conform to the writ; of which there could be no amendment, changing the nature of the action. No portion of the claim of the appellee’s was recoverable under the proceedings before us, except that for which an action of assumpsit was the appropriate remedy. To this extent the appellees were entitled to recover, and consequently the county court could not, for the reason assigned, have quashed the writ of attachment, no matter at what stage of the proceedings the motion for that purpose might have been made.

The second and third reasons assigned for quashing the attachment are but reiterations of the first, and consequently are disposed of by the views we have hereinbefore expressed. The fourth reason is so vague and indefinite, that it presents no point which this court are enabled to say, was determined by the court below, and for that vagueness and uncertainty was properly overruled by it, and regarded as a nullity. The additional reason, which was filed for quashing the attachment, was in these words: “That the proceedings do not disclose upon their face a compliance with the requisites of the act, in this, that they do not aver the defendant had actually runaway, absconded, or fled from justice, or secretly removed himself or herself, from his place of abode, with intent to evade the payment of his just debts.” It is true that the affidavit in the' case before us contains no such averment, but it is equally true that such an averment is not an indispensable requisition to the issuing of an attachment. The provision of the act of Assembly has been, in this respect, if not to the letter, at least substantially complied with. The creditor has sworn “that he is credibly informed, and verily believes, that the said Ignatius Boarman, (the debtor,) has removed from his place of abode, with intent to injure and defraud his creditors.” Which is all that the act of Assembly in that respect requires.

Had the reasons assigned in the county court, for quashing the attachment, been preferred in the most appropriate stage of the cause, we see nothing in the specific grounds relied on in the motion that could have sustained it. The county court therefore committed no error in overruling it. But the present appeal is not only taken to the order of the court, overruling the motion, but to the judgment of condemnation which has been rendered in the cause. For the reversal of this judgment we see in the record sufficient grounds, if in accordance with the act of 1825, ch. 117, it sufficiently appeared, that the county court had before entering the judgment, ,or subsequently on a motion to strike it out or amend it, (had such motion been made,) decided upon the sufficiency of those grounds. This judgment we think erroneous because it condemned the property attached not only towards satisfying that portion of the appellees’ claim which was recoverable in an action of assumpsit, but also that portion thereof which could only have been recovered in an action of debt or covenant. And waiving this error, it was also erroneous because it added the interest to the principal on all the claims up to the fifteenth day of January, 1841, and from that time awarded interest to be paid on the gross sum so ascertained. Thus compounding the interest, or charging the appellant with the payment of interest upon interest, a charge, in proceedings like the present, not warranted by any act of Assembly or principle of law of which we are apprised. But for these errors, we are not at liberty to reverse the judgment, it not appearing that they were presented to the consideration of the county court, or that it made any decision in relation thereto. Sasscer vs. Walker’s ex’rs., 5 Gill & Johns. 102.

The appellant, however, claims a reversal of the judgment before us, for other reasons than those we have mentioned : First, “because there is no averment of the citizenship of Patterson, one of the plaintiffs;” and, secondly, “because there is no averment of the citizenship of the defendant.” These points were not raised in the court below, nor does it appear that they were considered or determined by it. Nevertheless, notwithstanding the act of 1825, they are, in this case, fit subjects for review in this court. Where a special limited jurisdiction, distinct from and not embraced by its general jurisdiction, is conferred by act of Assembly on any tribunal, its power to act, as it has done, must appear upon the face of its proceedings. And when those proceedings are brought up for review in this court, it must appear from their inspection, that every thing has been done which the law required as the basis of the authority that has been exercised. To our enquiries into such a subject the act of 1825 interposes no obstructions; it has no application to them. That such is the doctrine of 'his court in relation to the two defects now under consideration we think fully appears by the case of Bruce and Fisher vs. Cook, garnishee of Scarborough, 6 G. & J., 348—where, in the court’s opinion, it is said, that if there be error in the proceedings on which an attachment had issued, by reason of which the jurisdiction of the court did not appear, “it w’ould have been a fatal objection after verdict on a motion in arrest of judgment.” That the garnishees “might have taken advantage of it, if a jury had been sworn, by a prayer for the instruction of the court; or, after verdict and judgment against them, without raising the objection below, it might, on appeal or writ of error, have been assigned as error here, and this court would have taken notice of and sustained it.” To show the materiality of the omissions here complained of, it is only necessary to refer to the act of 1795, ch. 56, sec. 1; under which, unless the affidavit contain such averment of citizenship, as to both creditor and debtor, no attachment against an absconding debtor can lawfully issue; no judgment of condemnation can be rendered by the county court. Those facts not appearing in the affidavit, neither the magistrate who issued the warrant, nor the county court, have any jurisdiction over the subject matter: the whole proceedings would be irregular and ought to be quashed. So stood the law under the act of 1795. But by the act of 1834, ch. 76, sec. 1, it is enacted “that no attachment that shall hereafter be issued by, virtue of the act to which this is a supplement or of any of the supplements thereto, shall fail, be dismissed, quashed or defeated, because of any defect in any averment, as to the citizenship or residence or inhabitancy of the plaintiff or plaintiffs or any of them, or because of any omission altogether of averment in that respect in the affidavit for such attachment, or in any act or any part of the proceedings preliminary to such issuing of attachment; provided that if any trial take place it be proved at the trial in such attachment case that the plaintiff or plaintiffs, or any of them, at the time of issuing said attachment, was or were a resident or inhabitant or residents or inhabitants of one of the United States of America, or of a District or Territory thereof.” By this act of Assembly, under the circumstances in which this case stands before us, we think the appellant cannot claim a reversal of the judgment, or that the proceedings on which it is founded be quashed, by reason of the omission of the averment of citizenship as to one of the plaintiffs. The design of this act of Assembly was to protect plaintiffs from the effects of the omissions enumerated until a trial should take place, at w'hich the omission complained of could be supplied by proof. The infirmity in the affidavit, as to the citizenship of the defendant, remains unhealed by any legislative act, and compels us to reverse the judgment of the county court, and to quash the writ of attachment op which it is founded.

JUDGMENT REVERSED AND ATTACHMENT QUASHED.