McCoy v. Boyle

10 Md. 391 | Md. | 1857

Le Grand, C. J.,

delivered the opinion of this court.

This was an attachment on warrant, issued out of the Court of Common Pleas of Baltimore city, at the suit of the appellee, against the goods, chattels, credits, &c., of Silas H. Dewey, upon a promissory note for three hundred and twenty-five dollars, due upon the 5th of August 1853. The affidavit of the plaintiff is dated the 23rd of September 1853, and the warrant of the magistrate, directed to the clerk of Baltimore county court, is dated as of the same day. The attachment bears date the 22nd day of September, a day anterior to the date of the warrant. It was laid in the hands of several persons, among the rest, in those of McCoy; he not appearing, a judgment was had against him by default. After giving the necessary bond, the appellee sued out a writ of fieri facias. The appellant, McCoy, then appeared and moved to strike out the judgment and quash the writ of attachment. This motion the court overruled, from which ruling, as well as from the order of the court, directing the amending of the date of the writ of attachment from the 22nd to the 23rd of September, this appeal is taken.

We concur in the ruling of the court below. The date of the writ was manifestly a clerical error. It professes to be founded on the warrant of the justice, and was so in fact issued. This fact was apparent on tire records of the court, and it was not only competent to but the duty of the court, to order the amendment of the date of the writ.

In support of the motion to strike out the judgment, and to quash the writ of attachment, it was insisted on behalf of the appellant, first, that the affidavit of the appellee did not show that the plaintiff was a citizen of one of the United States, and second, that the return of the sheriff did not, in words, show, that the garnishee had been summoned.

We think both of these objections are answered by the decision in the case of Boarman vs. Israel & Patterson, Ex'rs, 1 Gill, 372. At page 381 of the report of that case, the court, referring to the absence of the averment of the citizenship of one of the plaintiffs, say, that although the point had not been made below, yet, nevertheless, notwithstanding the act of 1825, chapter 11.7, it is a fit subject of review in this court. They then proceed to show, that although under previous legislation such omission would be fatal, yet, such is not the case since the passage, of the act of 1834, ch. 79, sec. 1. They say, Gby 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 jt is founded be quashed, by reason of the omission of the averment of citizenship as to one of the plaintiffs,” In that case there was a total omission of averment, as to the citizenship of one of the plaintiffs, whilst in the case now before us there is no such omission; so far from it, the averment is distinct, that the plaintiff is “a resident of the United. States.

The case of Boarman vs. Israel & Patterson, Exc'rs, was like the one no.w before us. The judgment rendered in it, as in this, was by default; and the return of the sheriff the same, jn words, with the exception of the names of the parties, as the one in this case. The return in both cases, states the writ to have been “laid in the hands,” &c., of the garnishee. Although such return is .not in strict conformity to the form given in 2 Vol., Evans' Harris, 503, it does not therefore follow it is not sufficient. If the writ was “laid in the hands” of the garnishee, it was in fact notifying him of the proceeding and of the clause of soire facias which it contained. We have caused the records of Raltimore county court and of the Superior oourt, for many jmars past, to be examined, for the purpose of ascertaining the practice which has prevailed, in regard to returns of sheriffs in attachment suits, and find they have been uniformly the same as in. this case. This circumstance, alone, would induce us to pause before we would declare, that all which had heretofore been done was error; but in the case which we have cited from 1 Gill, we think, the ¡¡sufficiency of such a return must be considered, on every correct principle of reasoning, as having been adjudged. The court there say: — “ 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 these 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..’’ The return in that case

was the same as the one in this; the court there, on the inspection of the record, discovered no defect in it; nor do we in the one in the present instance.

The other objection, founded on the form of the address of the warrant of the justice, we deem of no importance. It is headed, to the “clerk of Baltimore county court,” and then “Mr, Norwood” is directed to issue the writ. At the time of the issue of the attachment there was no such court as “Baltimore county court;” but there was one of “Common Pleas for Baltimore city,” of which Mr. Norwood was clerk, as is shown by the record. We regard the prefix of the words “clerk of Baltimore county court,” as mere surplussage and of no effect.

Judgment affirmed.