Jordan v. Landram ( 1910 )

Mr. Chief Justice Shepard

delivered the opinion of the Court:

Objection has been taken to the plea to the jurisdiction for want of particularity. In our opinion it alleges the necessary facts, and is sufficiently certain. The facts substantially appear in the declaration itself.

The jurisdiction is sought to be maintained by virtue of the provisions of secs. 105 and 445 [31 Stat. at L. 1206, 1258, chap. 854] of the Code.

The function of sec. 105 is to substitute summons by publication for personal service where necessary in certain suits and actions in the nature of proceedings in rem, in which are included attachments.

This action is in debt, and the only ground upon which process by publication can be maintained is that an attachment has been sued out and levied upon property. And of course that could be good only to the extent of the condemnation of the attached property and the application of its proceeds.

These attachments are authorized by sec. 445 in certain cases where defendants are nonresidents, or, being residents, have absented or secreted themselves, or have committed certain frauds upon creditors, etc. Neither executors nor administrators are named in the section as subject to attachment, and as the attachment of the property of an estate is obviously inconsistent with the law of administration, nothing less, we think, than express authorization, would warrant it. It was denied, after full consideration, by this court, where the attempt had been made to attach effects in the hands of an executor, as garnishee, under the provisions of the Maryland act of 1715, then in force. Graham v. Fitch, 13 App. D. C. 569-573. See cases cited therein, also. Chief Justice Alvey, who delivered the opinion in that case, among the reasons given for the conclusion, said: “Indeed, if the principle contended for by the appellant in this case were sustained, it would not only embarrass and delay the settlement of estates, but would often draw them from courts of probate and administration, where they ought to be settled, before the courts of common law, which would have no power to adjust and settle the accounts of the executor or administrator. Such interference might produce much inconvenience, and prevent the executor from executing his office as the law directs.”

The same doctrine was maintained in the old circuit court of the District. Redfern v. Rumney, 1 Cranch, C. C. 300, Fed. Cas. No. 11,627; Patterson v. McLaughlin, 1 Cranch, C. C. 356, Fed. Cas. No. 10,828; Henderson v. Henderson, 5 Cranch, C. C. 469, Fed. Cas. No. 6,353.

Like reasoning has generally, if not invariably, controlled the judgments of courts in other jurisdictions where attachments are authorized by statutes of the same general character as sec. 445. Hemingway v. Moore, 11 Ala. 645, 646; Jackson ex dem. Murray v. Walsworth, 1 Johns. Cas. 372; Re Hurd, 9 Wend. 465-468; Debuys v. Yerby, 1 Mart. N. S. 380; Cheatham v. Carrington, 14 La. Ann. 707; Haight v. Bergh, 15 N. J. L. 183; Connelly v. Lerche, 56 N. J. L. 95-99, 28 Atl. 430. See also Drake, Attachm. 5th ed. § 81.

The learned trial justice was clearly right in overruling the demurrer and entering judgment for the defendants; and that judgment will be affirmed, with costs. Affirmed.