Evesson v. Selby

| Md. | Mar 10, 1870

Brent, J.,

delivered the opinion of the Court.

The appeal in this case is from an order of the Superior Court of Baltimore city, sustaining a motion made on the part of the garnishees, to quash an attachment on warrant, which had been issued by the appellant against the James River Insurance Company, a foreign corporation, and which had been laid in the hands of the appellees. The affidavit for attachment is made before a J udge of the Supreme Court of New York. Annexed thereto is this certificate: “State of New York, New York city and county, to wit: I, William C. Conner, Clerk of the Supreme Court of the State of New York aforesaid, do hereby certify, that W. T. Clerke, whdse name is subscribed to the above certificate or affidavit, was, on the day of the date thereof, a Judge of said Supreme Court, duly commissioned and sworn, and had authority to administer the oath therein mentioned.” This certificate is duly signed and attested by the seal of the Court.

The substantial defect in this case is alleged to be in the above certificate, because it does not appear by it that the Court therein mentioned is a Court of Record. This objection is founded upon the provision of the attachment law requiring, “if the affidavit be made out of the State, and before a Judge of a Court of Record, there shall be a certificate from the Clerk of said Court, under the seal thereof, that at the time the same was made, he was a Judge of said Court, and that the same is a Court of Record.” Art. 10, sec. 6, Code of Pub. Gen’l Laws.

The doctrine is familiar, that the proceedings in attachment being wholly statutory, and in contravention to the common law, they must strictly follow the provisions of the statute under which they are authorized. The plaintiff, to succeed, must follow its directions, and if any of them are omitted, he cannot avail himself of the remedy which it confers. It is only when the conditions, required as precedent to the issuing of an attachment, are fulfilled, that any jurisdiction is given to the Courts to hear and determine the case upon its merits. The wisdom and policy of these conditions, as found in the law, are questions for the law-making powers. They have the right to say what facts are essential to give jurisdiction to the Court, and to direct what shall be the character and form of the evidence to establish them. The Courts are to construe the law as it is found upon the statute-book, and determine whether its obligations imposed have been complied with. In looking at the attachment law, we find it is expressly provided, that no attachment shall issue without affidavit, and if the affidavit is made out of the State, before a Judge of a Court of Record, it shall be certified by the clerk of that Court, under seal thereof, that the Court, of which he is Judge, is a Court of Record. Both the fact to be established, where the affidavit is made out of the State, and the manner in which it is to be proved, are here distinctly pointed out. The Court must be a Court of Record, and it must be proved to be so b;/ the clerk’s certifying,, under his official seal, that it is a Court of Record. This is one of the conditions precedent to the issuing of an attachment, and must be fulfilled. If it is omitted, the proof cannot be supplied aliunde, and the defect is fatal upon a motion to quash.

It is true, as argued on the part of the appellants, that there need not be a literal compliance with the statute, but a substantial compliance is all that is necessary. Shivers vs. Wilson, 5 H. & J., 130. The Act of 1795, ch. 56, required, in terms as stringent as any in the present attachment law, that where an attaching creditor made the affidavit required in any other of the United States, the certificate annexed should state, “ that the said Judge hath authority to administer an oath.” Under this law it was decided, in Smith vs. Greenleaf, 4 H. & McH., 291, that the certificate of the Governor of Massachusetts was a sufficient compliance with its requirement — he having certified “ to the affidavit made before the Justice of the Court of Common Pleas, Ghat full faith and credit is to be given to his attestation.’ ” And so it was also held in the case of Washington vs. Hodgskin, 12 G. & J., 353, where the Governor of Mississippi certified that the attestation of Isaac R. Nicholson, Judge of the Circuit Court, &c., “ to the annexed certificate is in due form of law, and made by the proper officer, and that full faith and credit are due to all his official acts.” The Court, in these cases, acting upon the ground that a substantial compliance with the statute was sufficient, decided that, upon the face of the affidavit and certificate, taken together, it did appear that the Judge “had authority to administer an oath.” The soundness of these decisions we do not question. They, in fact, only affirm the doctrine that a substantial compliance with the statute is sufficient, and determine from what papers in the case it may be made to appear. Their distinction from this case, how'ever? is very marked. While in them, the Court was enabled to gather from the certificate and affidavit the fact, that the person before whom the affidavit was made, had authority to administer an oath, it can no where be gathered or inferred from the face of the certificate and affidavit in this case, that the Court in question was a Court of Record. In this respect, the cases are wholly unlike, and the authority and weight claimed for them by the appellant’s counsel, in settling the question now before us, cannot be conceded.

(Decided 10th March, 1870.)

The very learned argument, based upon the authentieation by a seal as in itself proof of a Court of Record, would have its influence, were it not for the language of the statute, under which this attachment issued. In giving a meaning to its language, we cannot infer that in proceedings under it, a seal alone imports a Court of Record. It requires in express terms, that the clerk of the Court, under the seal thereof, shall certify “that the same is a Court of Record.” To give to the seal alone the effect claimed for it, we should have to expunge from the law what it particularly directs should be contained in the certificate, and that authenticated by the seal of the Court. This -we cannot do, but must hold upon every rule of construction, that the fact, required to be certified to, must appear affirmatively in the certificate of' the clerk, attested by his official seal.

The objection, that the motion to quash came too late, because made after issues joined and testimony taken, is disposed of by the decisions referred to on the part of the appellees. As the motion, for a substantial defect in the proceedings, goes to the question of jurisdiction, it will be entertained at any stage of the trial, and if the Court discovers its want of jurisdiction, it is proper to arrest the further progress of the cause by quashing the attachment. Bruce vs. Cook, 6 G. & J., 346; Stone vs. Magruder, 10 G. & J., 387.

As there is no error in the action of the Court below, the order quashing the attachment will be affirmed.

Order and judgment affirmed.