Lambden v. Bowie , 2 Md. 334 ( 1852 )

Ecclestoií, J.,

delivered the opinion of the court.

In this attachment under the act of 1795, ch. 56, an ex-porte affidavit was filed, for the purpose of proving that the defendant was a resident of Maryland, at the time the writ issued, and thereupon, a motion was made, by counsel for the defendant, to quash the proceedings. Without further proof, the attachment was quashed, and from this decision of the court, the present appeal was taken.

In Campbell vs. Morris, 3 H. & McH., 553, it was held, that on a motion to quash, “evidence dehors or extrinsic the proceeding, may be resorted to in order to prove the want of title to the property attached.” From the opinion of the general court in that case, it will be seen that until the defendant appeared, which could not then be without giving bail, no evidence was admissible which related to the merits of the dispute between the parties ; but until an appearance with bail, every fact was cognizable by the court which would show the attachment issued irregularly, or that the property did not belong to the defendant. These principles in regard to an attachment, and the mode of proceeding under it, are fully recognized and approved, in Ranahan vs. O’Neale, Jr., 6 G. & J., 301. And in Stone vs. Magruder and Brooke, 10 G. & J., 386, the court refer to Campbell vs. Morris, as authority to the rule, that where a defect is apparent in the proceeding, the attachment may be quashed upon suggestion of such defect to the court, by the defendant, or a third person, claiming an interest in the property. In stating this rule the court use the very language of Judge Chase, (although not marked as a quotation,) and then say: “The practice has constantly conformed to this doctrine.” Nothing is said in reference to that portion of Judge Chase’s opinion which relates to matters dehors or extrinsic the proceeding. There was no necessity for doing so, as the question then under consideration arose upon an apparent defect.

The counsel for the appellant has referred to Barr, Garnishee, vs. Perry, 3 Gill, 323 and 324, as overruling Campbell vs. Morris, so far as relates to a motion to quash, based upon matters not apparent in the proceeding. • And he contends that under this recent decision, defects which are not apparent can be taken advantage of, only, by plea. We do not so understand that case. There a plea was resorted to, and the plaintiff demurred. The question thus presented, was not whether a motion to quash would have been proper, but whether it was, so essentially, the only appropriate proceeding, that a plea could not be allowed. The court overruled the demurrer, and held the plea to be good. In the argument in favor of admitting the plea, reference is made to decisions, in Vermont, Connecticut and South Carolina. And the learned judge who delivered the opinion of the court, comes to the conclusion, “that courts of more modern times have not been so partial to the old practice of trying facts, without the intervention of a jury, even in these summary proceedings.” After noticing the South Caroliua cases, with some particularity, he says: “In Maryland it ought not to be doubted, that these facts, if disputed, may be submitted to a jury, and, therefore, may be pleaded.” If, however, they may be pleaded, it does not follow that they cannot be made use of, upon a motion to quash. Such a position is not distinctly announced in, nor is it a necessary inference from, any part of the opinion. In view of this, and the other Maryland cases, referred to, we think that such defects, not apparent in the proceeding upon attachments, as, according to the authority of Campbell vs. Morris, might be made available, on a motion to quash, may now be used in the same manner, or may be pleaded, at the option of the garnishee. When the plea is resorted to it must be after appearance, for it would be altogether irregular, to admit a plea before. And as according to the Maryland practice, the original defendant never does appear to the attachment, but to the capias, this plea cannot be used by him; the motion to quash, however, may. The plea allowed in Barr vs. Perry, was filed by a garnishee.

The acts of 1834, ch. 79, and 1839, ch. 39, require the defendant to give bond before an attachment shall be dissolved. In speaking of the effect of those laws, on page 326 of 3 Gill, the court held, that since the passage of them, if the defendant gave bail and appeared, it did not dissolve the attachment. They say, “the law had been so, but thus far is altered by the legislature; he has still a right to give bail and appear, and thereby get the conduct of his own suit; but if he be a non-resident, the bail and appearance will no longer dissolve the attachment. Both cases will be in court. The plaintiff may get judgment in both, and the proper course will be to delay the trial of the attachment, until a trial is had in the other case.” When it is said, “h.e has still a right to give bail and appear, and thereby get the control of his own suit,” it must mean the capias case, as distinguished from the attachment, and therefore, sustains our view, that the original defendant never appears, technically speaking, in the attachment case.

Since the adoption .of the new constitution, special bail is no longer required, and the defendant may now appear, in “his own suit” without giving bail; but he cannot dissolve the attachment by appearance without giving bond.

Although a motion to quash may be maintained, at the instance of the defendant, in a case like the present, when sustained by proper proof, we do not think the court were right in quashing the attachment upon this ex-.parte affidavit. It was taken on the 29th of October 1851, and filed two days after, the writ having been returned the 27th of the same month, the day on which the term of the court had commenced, During whi.ch term the motion was decided. Upon such an affidavit the court might, very properly, have received the motion; but without an admission of the truth of the affidavit, or any proof to sustain it, the proceeding ought not to have been quashed. Allowing an ex-parte affidavit to have such an effect would be calculated to produce dangerous consequences,

When a motion of this sort is made, and the circumstances relied upon to sustain it are not admitted to be true by the opposite party, reasonable opportunity should be given to produce testimony on the subject. The manner of taking the proof may be regulated, by consent of parties, or directed by the court, in accordance with the rules of practice, in summary proceedings of this, and of like character.

Judgment reversed and procedendo awarded.