Northern Central Railway Co. v. Rider

45 Md. 24 | Md. | 1876

Bartol, C. J.,

delivered the opinion of the Court.

Edward Rider, Jr., the appellee, having recovered a judgment, in the Circuit Court for Baltimore County, against Shealey & Sellers, caused a writ of attachment thereon to be issued on the 30th day of May 1874, returnable to the September Term 1874. On the 27th day of August 1874, the writ was returned as follows:

“Laid in the hands of the Northern Central Rail R. Co., and servic'e admitted by the counsel, and summoned

Co. as garnishee.

Sam’l E. Butler, Shff.”

“May 30th, 1874. Service admitted for the Northern Central R. R. Co., garnishee.

“Bernard Carter, Atty. for “N. C. R. R. Co.”

On the 14th day of September 1874, being the first day of the succeeding term, '■‘■condemnation nisi was entered, against the appellant as garnishee; and at the succeeding December Term on the 2nd day of January 1875 an order was passed by the Circuit Court in the case, reciting the order of condemnation nisi, and making the same final,” there being, as stated in the order, “ no appearance hy counsel and no pleas having been filed.” At the succeeding March Term, viz., on the 5th day of April 1875, the appellant by its counsel, filed a motion to strike out the judgment of condemnation, setting out the reasons in support of the motion, this was overruled; and this appeal is taken from the order refusing to strike out the judgment.

One ground or reason alleged in support of the motion is “ that the attachment was not served on any officer of the corporation.”

The mode required by law, of serving process upon a corporation, is that it shall be served on “the president, or any director or manager or other officer of such corporation.” 1 Code, Art. 75, sec. 99; Act of 1868, ch. 47, sec. 212.

The sheriff states in his return that he laid the attachment “in the hands of the Northern Central Rail R. Co. and summoned Co. as garnishee.” It is very questionable whether this, standing alone, would be a sufficient return. It ought to appear affirmatively upon what person or pelsons the process was served, so that the Court could judge whether it was in law a valid service upon the company, otherwise that would be left to depend upon the judgment or discretion of the sheriff. A return that process had been served on the corporation and the company summoned, does not show that the law has been complied with, the corporation is a mere entity existing in the mind, and can neither act itself, nor he affected by legal proceedings except by and through its authorized agents. The law having designated the character of the agents on whom process shall he served, in order to hind the corporation, it ought to appear affirmatively by the sheriff' return, upon what person or persons the writ was served, so that the Court could determine whether the service was upon the company.

The sheriff states in his return “ service admitted by counsel” and appended thereto is the memorandum above stated signed by Mr. Carter, attorney for N. C. R. R. Co. admitting service for the company garnishee. What then is the effect of this admission? If it means that service on the company was made by service on the attorney, it is very clear that it wrould not he sufficient to hind the company; because the counsel is not an officer of the company within the meaning of the Code. A service on the attorney would not have the effect of bringing the corporation-into Court, so as to give the Court jurisdiction over it. “The admission of service by the attorney cannot have a greater effect than the actual service on him.” Leglise vs. His Creditors, 3 Con. La. Rep., 283 ; Masterton & Hoyt vs. Le Claire, 4 Minn. 163.

But the admission, or memorandum signed by the attorney and returned with the writ, is not altogether nugatory. It must he construed as a waiver of service on the company, and a consent by the attorney, whose authority for that purpose will he presumed, to appear voluntarily in the cause for the garnishee. Baxter, et al. vs. Arnold, et al., 9 How. Pr. R., 445. It was proper therefore at the return of the writ, that the appearance of the attorney for the garnishee should have been entered. That being the plain meaning and intention of the attorney’s admission, and the case must be considered as if the appearance had been so entered. This being so, it follows that the entry of the jtidgment on the first day of the Term was erroneous. The Code says “If neither the defendant nor the garnishee in whose hands the property or credits may be attached shall appear at the return of the attachment, the Court shall and may condemn,” &c. Art. 10, sec. 13. 1 It if the garnishee appears, judgment of condemnation cannot lawfully he entered at the return of the writ. In this case the judgment was prematurely entered, and the subsequent order of the 2nd day of January 1815 founded thereon was erroneous.

(Decided 15th June, 1876.)

For these reasons, the order of the Circuit Court refusing to strike, out the judgment of condemnation will he reversed, and the cause will he remanded, to the end that the judgment may he stricken out and regular continuances entered, and the garnishee he allowed to plead, and that such further steps may he taken as may he necessary to a trial of the cause upon its merits.

Reversed and remanded.