Weed v. Lewis

80 Md. 126 | Md. | 1894

McSherry, J.

delivered the opinion of the Court.

This is an appeal from an order of the Circuit Court for Prince George’s County, refusing to issue a writ of certiorari The facts alleged in the application for the writ are substantially these: On the twenty-second day of June, 1894, the appellee caused a writ of attachment and summons to be issued by a justice of the peace of Prince George’s County against the appellants, under which attachment certain property of the appellants was seized, and they were notified to appear before the Justice on July 16th, at 10 o’clock A. M., the return day named in the attachment.

They failed to appear on the return day and the Justice entered judgment of condemnation of the property seized. In eight days thereafter the application for the writ of certiorari was made. The application was based upon the assumption that the Justice of the peace ought, on the return day, and upon the failure of the defendants to appear, to have continued the case for not less than six, nor more than fourteen days, for trial; and also upon the alleged irregularity that no bond had been given before the attachment was issued.

In the recent case of Gaither v. Watkins et al., 66 Md. 576, it was contended that a eertiorari ought not to issue in any case where a party has a remedy by appeal or writ of error. But this Court said: “We are not prepared to go to this extent. This much, however, we may say, that as it is a matter resting in the legal discretion of the Court, the writ ought not to be granted in any case where the party has a right of appeal, except for the purpose of testing the jurisdiction of the tribunal below.” Now, the Code of Public General Laws gives-to justices of the peace jurisdiction to issue attachments by way of execution (Art. 52, sec. 67, Code), also against non-resident or absconding debtors (Art. 52, sec. 39), and also for fraud (Art. 52, secs. 6 and 45), when the amount claimed in any of these instances does not exceed one hundred dollars. It does not appear by the petition for the writ of certiorari to which class of attachments the one complained of belonged, but if it belonged to any and the amount claimed was not in excess of one hundred dollars, the Justice had undoubted jurisdiction of the subject-matter. If having jurisdiction of the subject-matter he subsequently proceeded irregularly or erroneously, this in no manner affected his jurisdiction and the appropriate and only remedy was by an appeal from his judgment to the Circuit Court, for which appeal the law makes ample provision. Code, Art. 5, sec. 83. This proposition was also distinctly decided in Gaither v. Watkins et al., supra. As there are no averments in the petition for the writ showing that the Justice had no jurisdiction to issue the attachment in question, the Circuit Court was right in refusing to issue the certiorari.

So far as the petition, which is the only thing before us, discloses the facts, there were no irregularities committed by the Justice. As stated, the two grounds set forth in the petition are the failure of the Justice to continue the case beyond the return day for trial on some subsequent date, and the failure of the Justice to require a bond from the plaintiff before issuing the attachment. The first ground is founded on the assumption that section 21 of Article 52 of the Code applies to writs of attachment. That section provides that when a defendant is returned summoned and fails to appear on the return day, the Justice shall fix a subsequent day for trial, not less than six, nor more than fourteen days from the return day.

(Decided November 23rd, 1894.)

It is clear, we think, that this provision has no relation to attachments, but applies only- to ordinary suits or actions instituted before a magistrate. Section 42 of the same Article directs that if the defendant or the garnishee shall not show cause to the contrary, the Justice may condemn the property ; and Section 44 requires this cause to be shown by the garnishee on the return day of the attachment, and no other provision exists giving the defendant any other or different day to appear except section 43, which has no application as the case now stands. The other objection is equally untenable. A bond is required' in attachments for fraud. The petition does not disclose that the attachment complained of was such a proceeding and we are not warranted in assuming that it was.

It is thus apparent that nothing has been set forth on the face of the petition to show that the Justice of the peace had no jurisdiction in the premises; and, as the writ of certiorari will only be issued where it is alleged and appears at least in a pi'ima facie manner that the inferior tribunal is without jurisdiction, the Circuit Court was right in refusing the writ and its order will be affirmed.

Order affirmed with costs above and below.