Dorsey v. Kyle

| Md. | May 27, 1869

Alvey, J.,

delivered the opinion of the Court.

Upon a careful examination of the several records before us, we fail to discover any sufficient ground 'for sustaining the motions of the appellant to strike out the judgments of condemnation.

“ Every person who doth not reside in this State, and every person who absconds, may be made a defendant in an attachment,” is the provision in our law in regard to defendants in attachments, (1 Code, Art. 10, seo. 2;). and the term citizen-, used in the formula of the affidavit prescribed by the 4th section of the Article of the Code referred to, is to be taken as synonymous with inhabitant or permanent resident. Risewick vs. Davis, 19 Md., 93. It is not, therefore, every person who can claim to be a citizen of, or to have domicil in the State, that can be relieved from the process of attachment. In contemplation of the attachment law, the domicil may be in this State, while the actual residence is in another. Matter of Thompson, 1 Wend., 43; Frost vs. Brishin, 19 Wend., 14; Haggert vs. Morrgan, 1 Seld., 428; and Risewick vs. Davis, 19 Md., 96, where the New York cases here referred to are cited and approved.

That the appellant was a non-resident, within the meaning and true construction of the attachment law, we think, is clear beyond doubt. It is insisted, however, that because the appellant was in "Virginia during the late war, and had. allied himself with the cause of the Southern States and joined the Confederate army, he thereby became an alien enemy, and that consequently “ all legal remedies were suspended during the period of hostilities.”

While it may be conceded that, by his own voluntary act, the appellant did assume the attitude of an alien enemy to this State and the Government of the United States, yet we cannot for a moment accede to the proposition that all legal remedies were therefore suspended in our own Courts, as against him or his property remaining within the jurisdiction of this- State. Such a proposition is as novel in jurisprudence as it would be unjust to creditors. There is no precedent of authority, or principle, known to us, that gives it the least sanction. The case of Griswold vs. Waddington, 15 John., 57, and same case in 16 John., 438, in error, relied on by the appellant, does not in any manner tend to support such a proposition. That was a case growing out of dealings and transactions that had taken place between citizens of hostile countries during the pendency of war, and in contravention of the law of the land. And the proposition there affirmed was, that no valid contract can exist, nor any promise arise by implication of law from any transaction with an enemy during the existence of hostility; and if, after the war has ceased, an action is brought against a citizen upon any contract arising out of such illicit intercourse, the defendant may set up the illegality of the transaction as a defence. This, as was shown by the elaborate discussion and great research of Chancellor Kent, in the case referred to, is a rule firmly established by universal authority. But that is altogether a different proposition from the one involved in the cases before us.

Here, the contracts upon which the proceedings were taken, had an antecedent existence to the war, and were made and grew out of transactions with the appellant when he was a resident citizen of the State, and the question is, whether they can be legally enforced in the Courts of this State, in the absence of the appellant, against his property by attachment.

As a general rule, an alien enemy is not allowed to maintain suit in the Courts of the country with which he is, at the time, in hostility. This, however, is a personal disability, of a temporary duration, and is founded upon reason and policy, and, to some extent, upon the necessity of the case. But no such reason or policy forbids judicial proceedings against an alien enemy, in favor of a friendly citizen; and it is, therefore, asserted by good authority, that while an alien enemy may not sue, he may be sued at law. Bac. Abr. Alien, D. Hence we know of no such thing as a plea by the defendant of his own alien enmity to the government in whose Courts lie is sued. The plea of alien enemy goes only to the disability of the plaintiif. It is not a matter of privilege, but a disability that suspends the right to maintain an action in the Courts of the country to which the party is an enemy. And if a party, though an alien enemy, be suable at all, it is difficult to suggest a good reason why the same proceedings cannot be had by his creditors against his property remaining within the jurisdiction of the State, that can be taken against the property of any other non-resident debtor whatever. His being an alien.enemy does not make him the less a non-resident debtor. The right of his creditors to proceed by attachment was not suspended because he thought proper to assume the position of an alien enemy. All the remedies provided by law against the property of an absent or non-resident debtor, remained open to them; and if they have pursued those remedies in the mode prescribed by law, the debtor himself can make no question of their right .so to do, upon the ground that he no longer remained in amity with them or their government.

As to the second ground assigned for striking out the judgments, that. they, had been confessed by an attorney without authority from the appellant, we think it is equally untenable as the one just considered.

By. the long established practice of the Courts in this State, whenever the appearance of an attorney is entered of record, it. is always considered as done by the authority of the party for whom the attorney professes to act; and whatever is done in the progress of the cause, by the attorney so appearing, is considered as done by the party, and is binding upon him. Henck vs. Todhunter, 7 H. & J., 275. And it was said, in the case of Munnikuyson vs. Dorsett, 2 H. & G., 378, that “the appearance of an attorney, without proof of au authority derived from a defendant, does not per se invalidate a judgment. If loss or injury be sustained thereby, the attorney must answer it in a civil action by the party injured.” There may be cases suggested, however, of fraud and imposition, where it would be proper, and indeed necessary, for the Court to interpose and relieve a party from the operation of a judgment, or other judicial proceeding, attempted to be fixed upon him by the act of an unauthorized attorney. But we discover no ground whatever for imputing fraud, or anything not entirely consistent with fairness and good faith, to the counsel who appeared for the appellant, and confessed judgments in these cases. It is manifest that he supposed he was acting by authority, and in the best interest of the appellant. And in regard to the judgments in the cases of Mrs. Dorsey, it is not shown that he appeared at all for the defendant in those cases. The agreement signed by him as attorney for the defendant, and Comfort W. Dorsey, had reference as well to the cases in which he had appeared for the defendant, as to the cases in which he appeared for Mrs. Dorsey; and hence he might wTell sign the agreement as he did, without any inconsistent relation with his clients.

It is not deemed necessary to discuss the other grounds assigned for the motions. They are clearly insufficient, in view of the facts disclosed. It appears, from the appellant’s own testimony,» that he heard of the proceedings against his property, in 1863, and that he did write in regard to one of the cases, and received information as to its condition. That from the summer of 1863, according to his testimony, “ anybody could write a letter not on political matters, by flag of truceand notwithstanding this facility of communication, and with a knowledge that proceedings had been taken in one instance against his property, before he left the State, and that other creditors had, since his departure, taken proceedings to obtain payment of their debts, he made no inquiry upon the subject, and held no communication with his creditors whatever. Moreover, he returned to the State about the first of June, 1865, and the .motions to strike out the judgments were not entered until the 19th of March, 1866. With such evidence of laches and inattention, it wrould be difficult in any case, however extraordinary its circumstances, if not a question of jurisdiction of tbe Court, consistently with settled rules upon tbe subject, to interfere with, a judgment. The party seeking to be relieved of it should move in tbe matter without delay, and as soon as practicable after knowledge of tbe existence of tbe judgment, and tbe circumstance of fraud or surprise, under which it was rendered. Acquiescence or unnecessary delay is fatal to motions of this character; as Courts are always reluctant to interfere with judgments, and especially after the lapse of the term, and where they have been executed or satisfied. The several judgments appealed from, in these cases must be affirmed.

(Decided 27th May, 1869.)

Judgments affirmed.