Mears v. Adreon

31 Md. 229 | Md. | 1869

Bartol, C. J.,

delivered the opinion of the Court.

The decisions in Bruce & Fisher vs. Cook, 6 G. & J., 345, and Boarman vs. Israel & Patterson, 1 Gill, 372, are conclusive of the question as to the right of this Court, on the present appeal, to examine the proceedings in attachment upon which the judgment was rendered, and to determine whether the requirements of the law essential to the jurisdiction of the inferior tribunals have been complied with. It was said by Judge Dorsey, in Boarman vs. Israel: “Where a sjoeeial 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 tins Court, it must appear from their inspection, that everything has been done which the law required, as the basis of the authority that has been exercised. To our inquiries into such a subject, the Act of 1825 interposes no obstruction; it has no application to them.” And citing from the case of Bruce & Fisher vs. Cook, he says, “ 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 would have been a fatal objection after verdict on a motion in arrest of judgment. 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 question below, it might on appeal or writ of error, have been assigned as error there, and this court would have taken notice of and sustained it.”

It woxild appear, therefore, to be the settled law of this Court, that upon an appeal like this from the judgment of condemnation in attachment, the question of the regularity and sufficiency of the proceedings is open to inquiry here, although no motion has been made in the Court below to set aside the judgment, or any motion to quash before the judgment was rendered.

The time allowed for an appeal from judgments at law is three years. Code, Art. 5, sec. 7. This provision relates to judgments of condemnation in attachment.

Under the attachment law, execution upon the judgment of condemnation cannot be issued before the lapse of a year and a day after the return of the attachment, unless the plaintiff gives bond conditioned to make restitution, if the defendant shall, within that period, appear to the original action, and make it appear that the claim of the plaintiff, or some part thereof, is not due to the plaintiff. Art. 10, sec. 13.

Ry this provision the defendant is allowed the year and day to come and defend the action upon its merits, in the same Court from which the attachment is issued. But this restriction has no reference or application to the time for exercising the right of appeal; this is regulated by Art. 5, sec. 7, before cited. " ’

The present appeal was taken within the time allowed. We proceed therefore to consider whether there are errors or defects apparent upon the record which entitle the appellant to a reversal of the judgment.

There is a manifest discrepancy between the affidavit, the account produced, and the short note. The first alleges an indebtedness of the appellant to Edward L. Thomas, William Adreon and William J. Adreon; the account purports to be an account of Adreon & Co. against the appellant; while the short note declares for money due to William Adreon, William J. Adreon and Edward L. Thomas, partners, .trading as Adreon, Thomas & Co.

It thus appears that the account exhibited is in the name of one firm, while the action itself, to which the attachment is auxilliary, is instituted by a different firm; without any averment upon the proceedings to show that the parties composing the two firms are the-same ; or anything to show that, by an assignment or otherwise, the rights and credits of one firm have enured to and been devolved upon the other. We are not prepared to say that such an irregularity might not be good ground for quashing the attachment, or even a fatal error upon an appeal after judgment.

In Dean vs. Oppenheimer, 25 Md., 368, it was held that a short note, merely specifying an indebtedness, without stating the cause of action, is insufficient on a motion to quash.

But in this case we do not rest our decision upon this error or defect in the proceedings.

In our judgment the account and accompanying vouchers produced before the justice are wholly insufficient, under the law, to authorize the warrant of attachment and subsequent proceedings against the appellant.

Without reciting here the words of the account, and the certificates appended thereto, it is sufficient to say that they do not show any debt or ground of claim by the appellees against the appellant.

The account states that Adreon & Co., as agents for Mears, received certain moneys for lots in “ Greenwood,” sold to several persons, and paid the same over to Mears, and that the title to the lots failed. These facts might be a ground for a claim against Mears, by the purchasers, if there were a warranty of title ; but cannot create any debt from Mears to Adreon & Co., unless the latter refunded the money to the purchasers for Mears, and at his instance, which is not stated in the account; nor is there anything appearing in the certificates to show any debt due from the appellant to the appellees. They are receipts, signed by ic Adreon & Co., as agents for the proprietors,” for moneys paid by various persons, in part of the purchase-money of certain lots in “ Greenwood.” These are ten in number; four of them are assigned to Adreon & Co., and the appellees’ counsel has contended that these assignments show a primd facie claim of Adreon & Co. against the appellant, and supply the defect in the account. But it does not appear that, in signing the receipts, Adreon & Co. acted as agents of the appellant; they signed as agents of the proprietors, who wore their principals in the transaction; the proprietors alluded to does not appear. If, however, it could be assumed they were acting as the appellant’s agents, the assignments to them of the receipts would simply give to them the benefit of the contract of purchase ; not a claim upon the appellant for money.

A proceeding under our attachment laws against the property of an absent debtor is a special remedy, conferred by statute, and must be pursued in the manner pointed out by the law. The proceedings must show on their face that all the requirements of the law have been substantially complied with.

(Decided 30th June, 1869.)

Not merely must the affidavit of the creditor be made before the Justice of the Peace, but “ the bond, account, or other evidences of debt, by which the debtor is so indebted,” must be produced. Code, Art. 10, sec. 4.

As decided in Dawson vs. Brown, 12 G. & J., 53, and Lee & Brewster vs. Tinges, 7 Md., 215, it is'not necessary to produce all the written evidence which might be used before the jury to establish the debt.

The written voucher or evidence of the debt is not required to be produced qua testimony. But the account and vouchers must be sufficient to show, on their face, a primd facie debt due by the defendant to the plaintiff. In the Cumb. C. & I. Co. vs. Hoffman S. C. Co., 22 Md., 495, the voucher produced was held to be insufficient because, though it imported an obligation on the part of the defendant, there was nothing to show the plaintiffs’ interest or right of action upon it.

In the proceedings in this case, as we have said, the account and certificates produced before the Justice furnish not even a primd facie ground of claim by the appellees against the appellant, without which the Justice had no jurisdiction to issue the warrant, and the attachment cannot' be supported.

Judgment reversed.