Tonn v. Linders

An attachment on original process for fraud was issued out of the Circuit Court for Wicomico county at the suit of the appellants and was levied upon certain personal property of the appellee in that county. After special appearance for the purpose the appellee moved to quash the attachment upon the grounds, first, that no writ of summons against him was directed to the sheriff of Worcester County where he actually resides, and secondly, that the affidavit upon which the attachment issued was invalid because of having been made a long time before it was used in the suit. The motion was supported by affidavit but no evidence appears to have been adduced. It may be gathered however, from the record that the fact of the defendant's non-residence in Wicomico County was practically conceded. The attachment was quashed and judgment entered for the defendant. It is the action thus taken by the Court below that is presented for our review upon this appeal.

It appears that at the institution of the attachment proceeding a direction in writing was given to the Clerk of the Circuit Court for Wicomico County to issue "summons to be served on the defendant and to send a copy of the short note to be set up at the Court-house door." Upon the approval of the bond the writs of attachment and summons were issued by the clerk to the sheriff of the same county. The former writ was levied upon the property already referred to, and the latter was served upon the defendant, who was in Wicomico County at the time. The contention is that although the defendant was actually summoned to appear to the plaintiff's suit, yet inasmuch as the writ of summons was not directed to the county of the defendant's residence, the Court was without jurisdiction to entertain the proceeding.

Section 38 of Article 9 of the Code of Public General Laws, relating to attachments of this character, provides that: "There shall be issued with every attachment issued under the provisions of the two preceding sections, a writ of summons against the defendant, as is usual in actions at law. The action shall be instituted either in the county where the defendant resides or where the property proposed to be attached may be located or found, or where the proposed garnishee resides; but if the action be instituted in any county other than that wherein the defendant resides the writ of summons against the defendant shall be directed to the sheriff of the county wherein the defendant resides, returnable to the Court in which the action shall be brought."

It has been held by this Court that: "The object of an attachment is to secure the appearance of the defendant by the seizure of his property (Barney v. Patterson, 6 H. J. 182), and to subject that property to the payment of the debt."Johnson v. Stockham, 89 Md. 376. The proceeding is in rem so far as the property is concerned. Until jurisdiction of the defendant is obtained by summons or voluntary appearance there can be no judgment in personam, but the action, if validly instituted, may nevertheless proceed against the property attached. Coward v. Dillinger,56 Md. 59; Johnson v. Stockham, supra. In the case before us if the summons had been sent to the sheriff of Worcester County and had failed of service because of the absence of the defendant in Wicomico County, it is clear, under the authorities cited, that this would not have affected the jurisdiction of the Court in which the attachment was issued to entertain the writ and to proceed to a judgment of condemnation.

The practical question to be determined here is whether a summons and actual service in the county in which the suit is brought shall be held less effective to support jurisdiction than a futile summons directed to the county of the defendant's residence. In our judgment to sustain as jurisdictional the objection we are considering, under the circumstances of this case, would require an unnecessarily strict construction of the statutory provisions on the subject and would produce a result opposed to their manifest spirit and purpose. When a defendant in such a proceeding can be reached, and is in fact served, with process in the county in which the attachment is issued, and to which the writ of summons is to be returned, there is no possible prejudice that he can sustain from the mere omission to send a subpoena to the county of his domicile. The statute does not make it necessary that the suit should be brought in the defendant's home county. But where the proceeding is instituted in a county in which he has property, but does not reside, provision is made for the issuance of a summons in the way most likely to accomplish the ordinary purpose of such a writ. When the whole object of this requirement has been gratified by the actual and regular service of a formal subpoena granted by the Court whose jurisdiction is invoked, it would seem unduly technical to quash the attachment simply on the ground that the summons was not sent to a different county. It has been held that a substantial compliance with the terms of the statute is sufficient to give the Court jurisdiction. Gunby v. Porter, 80 Md. 402;Evesson v. Selby, 32 Md. 346; and the general policy of the law is indicated in a liberal provision for amendments "so that all attachment cases may be tried on their real merits and the purposes of justice subserved," and in the declaration that no such proceeding shall "be quashed or set aside for any defect in mere matter of form."Code, Article 9, § 28. We are clearly of the opinion that the jurisdiction of the Court in this case should be sustained as against the objection we have discussed.

This conclusion is not at all in conflict with the principle of the decisions of this Court enforcing the due observance of the requirement of the issuance of a capias for the defendant and a copy of the short note to be set up at the courthouse door in attachment suits against non-resident and absconding debtors.Stone v. Magruder, 10 G. J. 383; Campbell v. Webb,11 Md. 481. There is a material distinction between an actual service of the writ of summons in the manner shown by this record and the failure to issue any writ at all.

The second ground of objection may be disposed of briefly. It is covered by the case of Hadden v. Linville, 86 Md. 234. In that case a motion was filed to quash the attachment because the affidavit appeared to have been made several months prior to the time of suing out the writ. The attachment was against a non-resident, and the Court held that the act did not intend that the affidavit must necessarily be made at or near the time of the institution of the suit, and did not direct that it should be made within a reasonable time. It is provided by section 4 of Article 9 of the Code that an attachment of that kind shall not issue "unless there be an affidavit," etc., while with respect to a case like the present the provision is that "before any such writ of attachment shall be issued" an affidavit shall be filed in form and effect as prescribed, Article 9, § 36. The conclusion of the Court in the case cited was that the divergence of dates between the affidavit and the attachment did not in itself affect the question of jurisdiction. It was said in reference to the suggestion that the affidavit should be made within a reasonable time: "If this construction of the statute be insisted on, it may be asked by what facts and circumstances is the reasonableness of the time to be determined? Is it to depend on distance, facility of inter-communication, diligence, or the vicissitudes of the weather?" "A jurisdictional question, above all others," said the Court, quoting with approval from Wilson v. Arnold, 5 Mich. 104, "should not be left in so much uncertainty."

In the case at bar it is stated by both the appellant and appellee in their briefs that the affidavit in question had been filed in an attachment suit between the same parties brought about a year previously in Worcester county. It was withdrawn from that case for use in the present proceedings. While the period intervening between the making of the affidavit and the institution of the pending suit was considerable, and while the proper practice would have been to file a new affidavit, the irregularity is not jurisdictional and we must overrule the objection which has been interposed on this ground.

The learned Court below erred in granting the motion to quash and giving judgment for the defendant, and its action will, therefore, be reversed and the cause remanded to the end that there may be a trial on the merits.

Judgment reversed, with costs to the appellant, and causeremanded.