Gill v. Physicians & Surgeons Building

138 A. 674, 153 Md. 394, 1927 Md. LEXIS 57

Opinion

Offutt, J.,

delivered the opinion of the Court.

This is an appeal from an order of the Baltimore City Court quashing an attachment on original process for unliquidated damages arising ex contractu against a non-resident, issued at the suit of Albert S. Gill, the appellant, against the Physicians and Surgeons Building, Incorporated, garnishee of S. B. Norman, and other appellees.

The proceeding was begun on November 7th, 1925, “by the filing of an affidavit for attachment for unliquidated damages against non-resident debtors, a declaration, affidavit, and itemized bill.” On November 20th, 1925, the defendants moved to quash the attachment for reasons referred to below. After that motion had been filed, nothing further was done in reference to it until March 17th, 1927, when the plaintiff asked leave to amend the affidavit to the nar. and also to file an amended attachment bond, and on the same day the court refused the petitions and quashed the attachment. These rulings are the subject of the three exceptions found in the record, the first of which relates to the court’s refusal to allow the affidavit to the nar. to be amended, the second to its refusal to allow an amended bond to be filed, and the third to its action in quashing the attachment.

The plaintiff’s claim was for legal services, and hence, for unliquidated damages (Steuart v. Chappell, 98 Md. 531), and the proceeding therefore could only have been brought under section 44, article 9, of the Oode, which in part provides that:

“Attachments may also be issued against non-resident debtors in eases arising ex contractu, where the damages are unliquidated, * * * but in such cases no attachment shall issue until a declaration shall have been filed, setting out specially and in detail the breach of contract complained of, * * * verified by the affidavit of the plaintiff, * * * and until a bond shall be filed similar in all respects to the bond required to be given in cases on attachments on original process for fraud, as prescribed by section 39 of this article, * * * the practice and pleading shall in all other particulars conform to the practice and pleadings against non-resident and absconding debtors in actions ex contractu for liquidated damages.”

Section 39, referred to in section 44, provides for bonds in cases of attachments on original process for fraud. Under it the plaintiff must execute a bond to the State of Maryland, with security to be approved by the clerk in double the sum alleged to be due from the defendant to the plaintiff,

“conditioned for satisfying all costs which may be awarded to such defendant or defendants, or to any other person interested in the proceedings, and all damages which the defendant or defendants, or any other person interested in the proceedings, shall suffer because of the wrongful suing out of said attachment, which bond shall be filed in the office of the clerk issuing such attachment, which bond shall be substantially in the following form: The condition of this obligation is such, that whereas the above bounden ..........hath on the day of the date hereof, ordered an attachment out of (naming the court from which said attachment shall issue) at the suit of.......... vs........... for the sum of .........., and the same being about to be sued out of said court, returnable on the..........day of..........next; now if the said .......... shall prosecute his suit with effect, or in the case of failure thereof shall well and truly pay and satisfy the said .......... and any other person interested in the proceedings all such costs of said suit, and all such damages as he or they shall or may suffer or incur by reason of the wrongful suing out of such attachment, then the above obligation to be void, otherwise to remain in full force and effect. Every attachment hereafter issued without a bond and affidavit taken as aforesaid is hereby declared illegal and void and shall be dismissed.”

Section 4 of the same article provides that:

“No attachment shall issue (except as hereinafter mentioned), unless there is an affidavit that the debtor is bona fide indebted to the creditor in the sum of .........., over and above all discounts; and at the time of making the affidavit, the creditor shall produce the- bond, account or other evidence of debt, by which the said debtor is so indebted; and shall also make affidavit that he knows, or is credibly informed and verily believes, that the said debtor is not a citizen of this state, and that he doth not reside therein; or if the said debtor resides in this state, that he doth know, or is credibly informed and verily believes, that the said debtor hath absconded.”

In attempting conformity with these requirements, the plaintiff filed an affidavit in substantial compliance with section 4, article 9, of the Code, a declaration, to which was annexed an. affidavit by the plaintiff “that there is justly due and owing by S. B. Norman, George T. "Penny, James E. Latham, Harold O. Kenney and Sarah B. Tull (née Gardner) the defendants in the within named case, to the plaintiff on annexed itemized bill (the cause of action in said cause) the sum of five thousand dollars ($5,000.00) (with interest from * * *) over and above all discounts, to the best of his knowledge and belief,” a voucher or account setting out the items and details of the services alleged to have been rendered, and'a bond duly approved by the clerk. Upon the filing of these papers an attachment issued, which was laid in the hands of the Physicians and Surgeons Building, Incorporated, as garnishee. After that the garnishee appeared generally and pleaded nulla, bona, and the defendants appeared specially and moved to quash the attachment on these grounds: (1) Because the court was without jurisdiction to issue the attachment; (2) because there was “no sufficient affidavit filed; (3) because there was no sufficient voucher' in the cause; (4) because there was no sufficient declaration; (5) because there was a variance between the declaration and the affidavit.

The objections to the voucher and the declaration respectively were not seriously pressed in this court, and in our opinion are without force. The voucher sets out in meticulous detail the nature and kind of service rendered by the plaintiff to the defendants, and fully complied with the requirements of the statute. Nor is there any apparent de feet in the declaration. It contains in addition to the six common counts a special count alleging all the elements of a legally enforceable contract of employment, the date of the contract, the object of the employment, the performance of the same by the plaintiff, the agreement of the defendants to pay for such services, and their refusal to do> so. The act only requires the plaintiff to set out “specially and in detail” the breach of contract complained of, and since the only breach of which the plaintiff complains is the failure to pay him reasonable compensation for his services, and since he did describe that breach in sufficient detail in the seventh count, the declaration was sufficient to comply with the terms of the statute.

The objection that “there was no sufficient affidavit filed” is too general to be the basis of an adjudication. There are two affidavits in the proceedings, of which one is designed to comply with section 4, article 9, supra, and the other with section 44 of the same article, and there is nothing in the motion itself to indicate to which affidavit it refers. Nor can we see any merit in the objection that there is a variance between the affidavit and the declaration, assuming that reference is made to the affidavit filed with the declaration. Because whatever else may be said of that affidavit, it certainly does not vary from the nar., since the only thing it does is to verify the cause of action, the voucher upon which the nar. is based. There remains then, of the grounds specified in the motion, only the objection to the jurisdiction, which is also phrased in very general language. But since such an objection can be made at any time before the case is finally disposed of on appeal (United States Express Co. v. Hurlock, Excr., 120 Md. 112), and since it appears that it was in fact based upon supposed defects in the affidavit to the declaration, and in the bond, and that those matters were actually considered by the trial court, we will assume that those questions are properly before us, and deal with them accordingly, although in doing that'we are not to be taken: as approving the form of that objection, or overruling De Bearn v. De Bearn, 119 Md. 430, or Robertson v. Beall, 10 Md. 125, which require that such objections as those relied upon by the appellee must be set out specifically. 6 C. J. 444.

The objection to the affidavit to the declaration is that it verified only the voucher, or bill of particulars, and made no reference to the declaration. Inasmuch as it would have been impossible to verify the cause of action without at the same time verifying the declaration, which was based upon it and nothing else; this is a highly technical objection, but it is unnecessary to pass directly upon it, because, before the court acted upon the motion to quash, the plaintiff asked leave to amend the affidavit by adding thereto the words “and that the matters and facts set forth in the aforegoing declaration are true as therein set forth and that the defendants are indebted to the plaintiff in the cause of action set forth in said declaration as therein set forth,” which would have removed any possible objection as to it. But the court overruled that motion, and refused to permit the amendment. Assuming that the amendment was necessary, that ruling was erroneous. Section 28, article 9, of the Code, supra, provides that “the affidavit * * * and all other papers in attachment proceedings may be amended in the same manner and to the same extent as the proceedings in any other suits or actions at law, so that all attachment cases may tried on their real merits and the purposes of justice subserved; nor shall any attachment proceedings be quashed or set aside for any defect in mere matter of form.” Prior to 1898 this section did not refer specifically to affidavits, and such cases as Blair v. Winston, 84 Md. 361, and Halley v. Jackson, 48 Md. 260, decided prior to that time and based upon the fact that the statute did not refer specifically 1» affidavits, do not control the construction of it after it has been amended so as to include such a specific reference, further than this, that the amendment was obviously adopted to correct what the Legislature regarded as a defect in the statute pointed out by those cases. The appellees’ contention that the affidavit was not intended to verify the declaration is in our opinion not sound, because he had undoubtedly filed one affidavit to comply with section 4 of the article, and there was no possible reason for filing another except to comply with the requirements of section 44. And in fact it did verify the declaration because, in verifying the bill of particulars, and deposing that the defendants were justly indebted to him in the amount named therein, over and above all discounts, the plaintiff necessarily verified every essential fact alleged in the declaration. Under such circumstances we cannot hold that the affidavit was void and of no effect whatever, but in our opinion the omission of a formal reference to the declaration was a mere irregularity, which under the statute could properly be supplied by amendment.

The second ground urged for quashing the attachment was that the original bond filed with the affidavit was “fatally de* fective and illegal.” The bond was duly executed by Gill as principal and the Maryland Casualty Company as surety, and it stated its obligation in these words:

“We, Albert S. Gill and Maryland Casualty Company, a corporation of the State of Maryland, Baltimore, Maryland, all of Baltimore City in the State of Maryland, are held and firmly bound unto the State of Maryland, in the full and just sum of ten thousand dollars, current money to be paid to the said state, its certain attorneys, or assigns, to the payment whereof well and truly to be made and done, we bind ourselves, our heirs, executors and administrators, firmly by these presents.”

But when it came to1 state the condition under which it could be discharged, it reversed the positions of the parties, so that its discharge depended upon the successful prosecution by the defendants of “their suit” against Gill, instead of upon the successful prosecution by Gill of his suit against them. Literally it is in these words:

“The condition of this obligation is such, that whereas the above bounden Albert S. Gill hath, on the day of the date hereof, ordered an attachment out of the Baltimore City Court, at the suit of Albert S. Gill vs. S. R. Norman, George T. Penny, James E. Latham, Harold O. Kenney, Sarah B. Tull (née Gardner), for the sum of five thousand dollars and no cents, and the same being about to be sued out of said court, returnable on the second Monday of November next.

“Now, if the said S. B. Norman, George T. Penny, James E. Latham, Harold C. Kenney, and Sarah B. Tull (née Gardner) shall prosecute their suit with effect, or in case of failure thereof, shall well and truly pay and satisfy to the said Albert S. Gill and any other persons interested in these proceedings, all such costs of said suit, and all such damages as he or they shall or may suffer or incur by reason of the wrongful suing out of said attachment, then the above obligation to be void, otherwise to remain in full force and effect.”

Before the motion to quash had been determined, the appellant offered to file, in the place of the original bond, a new bond, which would comply strictly and literally with the terms of the statute, but the court refused to allow the amendment, and that ruling was the subject of the second exception’. Why this amendment was not allowed is not apparent. The statute, while not referring specifically to bonds, does explicitly say, after referring to the affidavit, short note, declaration, voucher, pleadings, interrogatories, claim of property, that “all other papers in attachment proceedings” may be amended so that attachment cases may be tried on their “real merits and the purposes of justice subserved.” This language would certainly seem to be broad enough to permit an amendment to the bond, and it must be so construed if we are to give any effect at all to the words “all other papers.”

The earliest legislation on the subject in this state seems to have been by chapter 54 of the Acts of 1845, which authorized the amendment of the writ of attachment. That was supplemented by chapter 324 of the Acts of 1846, which provided that no attachment should be quashed “or dismissed by reason of any defect or imperfection in the affidavit upon which the same was issued, or the warrant of attachment, or other process or proceedings in said cause; but that the court before which any such case is pending, shall allow all and every amendment in such affidavit, warrant, process or proceedings, so as to bring the cause fairly to trial upon its merits, the party asking leave to amend, paying the costs of the term at which the amendment is made.” By chapter 328 of the Acts of 1846, the privilege of correcting misnomers and supplying the omission of names in the writ itself by amendment, given by the Act of 1846, ch. 324, was extended to “all cases of mistake” in attachment proceedings. And the law was in that shape until chapter 507 of the Acts of 1888 was passed, which provided that: “Attachment proceedings may be amended in the same manner and to the same extent as any other suits or actions at law, so that the same may be tried on their real merits and the purposes of justice subserved; nor shall any attachment proceedings be quashed or set aside for any defect in mere matter of form.” Ten years later, by chapter 44 of the Acts of 1898, the section was again repealed and re-enacted in its present form. Throughout that whole period the policy of the state, as written by these successive statutes, has been to broaden the power of amendment, so that attachment cases might be tried on their “real merits and the purposes of justice subserved.”

The proceeding is statutory, in derogation of the common law, confers upon the courts only a limited jurisdiction, and is said not to be favored by the courts, and the remedy does not exist at all in a given case until every statutory requirement has been fully and strictly complied with, which must appear on the face of the record. So much may be conceded. Hodges and McLane on Attachment, secs. 11, 12; Brantly's Digest. But after conceding that, it is still apparent that the legislation has a definite legal purpose and intent, to which the courts should give effect when that can be done without violence to established legal principles. That purpose is thus stated in Barr v. Perry, 3 Gill, 313: “The great purposes of the act, said the Supreme Court of New Jersey, in the case 1st Green, 134, are, by seizing the property of a debtor, to compel his appearance, to answer the demand of the plaintiff; when from non-residence or flight, he is beyond the process of onr judicial tribunals, and on his failure of appearance, to apply such property to the just end of satisfying his debts.” There is nothing illegal or wrong in such a purpose, and it should ordinarily be the duty of the courts to effect it by construing statutes creating the remedy liberally so as to accomplish that purpose. And.no doubt such a policy would have been adopted but for the fact that the remedy is in derogation of common right, and that the courts in administering it act in the exercise of a special limited jurisdiction. As a result of this conflict between a just, honest, and legal legislative intent, and well established legal principles long and firmly embedded in the common law, there has been some difference in the principles adopted by different jurisdictions for their guidance in construing attachment statutes. Shinn on At tachments, sec. 8. Nor has that conflict been wholly absent from the decisions of this Court. Although it was held in Barney v. Patterson 6 H. & J. 201, that an attachment after two non ests was not in derogation, but rather in mitigation, of the common law, that decision, while referred to, was not expressly adopted in Risewick v. Davis, 19 Md. 82, and what has come to be the established rule was very clearly stated in Evesson v. Selby, 32 Md. 345, where it is said: “The doctrine is familiar, that the proceedings in attachment being wholly statutory, and in contravention to the common law, they must strictly follow the provisions of the statute under which they are authorized. * * * It is true, as argued on the part of the appellants, that there need not be a literal compliance with the statute, but a substantial compliance is all that is necessary. Shivers v. Wilson, 5 H. & J. 130.” And to the same effect is this statement in Coward v. Dillinger, 56 Md. 60: “All property, however, within the limits of the state, whether belonging to residents or non-residents, is subject to its laws, and the state has the right to prescribe how and in what manner such property shall be subjected to the claims of creditors. It is upon this principle that legislation in regard to attachment laws is founded. The proceeding is in rem — against the res, and not against the person. Being then a jurisdiction derived from statutory law, no principle is better established than that the attachment proceedings must upon their face show affirmatively that the requirements of the statute have been substantially complied with, otherwise the court issuing the attachment would be acting without jurisdiction and the judgment thereupon rendered would be void.”

As a result of these and later cases, such as Hedrick v. Markham, 132 Md. 162, the principle has become firmly established in this state that, while the attachment statutes will be strictly construed in determining what steps must be taken to confer jurisdiction on the court issuing the attachment, yet in determining in a given case whether the acts of the attaching creditor amount to a compliance with those requirements, the statutes will be more liberally construed, and that view is stated in Tonn v. Linders, 116 Md. 55. In that case the writ of summons was directed to the sheriff of Wicomico County, where the attachment issued, instead of to the sheriff of Worcester County, where the defendant resided, but the defendant happened to be in Wicomico County at the time and was duly summoned. The defendant moved to quash the attachment on the ground that no writ of summons directed against him had been issued to the sheriff of Worcester County, as required by the statute. But Judge Urner, speaking for this Court, in disposing of that objection, said: “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 pro vision for amendments ‘so that all attachment cases may be-tried on their real merits and the purposes of justice sub-served,’ and in the declaration that no such proceeding shall ‘be quashed or set aside for any defect in mere matter of form.’ ”

The steady broadening of the rig1ht of amendment by successive legislative acts, so as to obviate the failure of attachment proceedings through errors and omissions which could readily be corrected or supplied, is in itself a sure index of a legislative intent -and policy that, where the right to the remedy actually exists, it is not to be defeated by any error in the jurisdictional acts required by the statute, which can be corrected by seasonable amendment without injury to the defendant. That being true, it is the duty of the courts to give effect to that intent, where that can be done without violence to the clear language of the statute. Note (d), Alexander v. Worthington, 5 Md. 472.

Applying these principles to ¡the question under consideration, in our opinion the language of section 28 of article 9, supra, is broad enough to authorize an amendment to the bond filed in this case. The procedure in such oases is in no sense ritualistic, but each step has a definite and substantial purpose and reason. The object of the bond is to protect from loss the defendant, the garnishee, and every other person who may in fact be injured by the unjustified institution of the proceeding. If that purpose can be accomplished as well by an amended bond as by an original bond, there is no apparent reason why the plaintiff should not be permitted to file such an amended bond, or why, when filed, it should not be regarded as a complete compliance with the statutory requirement, requiring the filing of a bond as a condition precedent to issuing the writ.

Such cases as McLuckie v. Williams, 68 Md. 262, and Wanamaker v. Bowes, 36 Md. 42, are clearly not in conflict with that view. In each of these cases the Court was not dealing with an application to amend a bond, but with the sufficiency of the bonds respectively filed therein. In McLuckie v. Williams, supra, the bond ran to the defendant and not to the State, and therefore clearly failed to meet the requirements of the statute, while in Wanamaker v. Bowes, supra, the bond was never executed by or for the principal, and the only question before the Court in those cases was whether the attachments respectively issued therein were void because no valid bond had been filed as required by the statute. Which, of course, was a different question from one involving the right of the plaintiff to correct a defective bond so as to give the protection intended by the statute which the original bond failed to give. In our opinion, therefore, the court erred in refusing to permit the plaintiff to amend his bond in accordance with his petition. The bond in its original form was mere nonsense, because of the transposition of the names of the parties in the condition clause, While it is probable that it was intended to comply with the requirements of the statute, it does not do so, and to hold that it does would not be to construe the bond but to write a new one. We have examined the authorities cited by the appellant to that point, but none of them go as far as wo would have to go to sustain the bond in this case, and, if we were required, to decide the question, we would find it difficult to hold that the original bond was valid. But inasmuch as the plaintiff has offered to file an amended bond which is valid, that question becomes immaterial and need not be decided.

The third and last exception relates to the action of the trial court in quashing the attachment. Since the only defects which would have justified such action could have been corrected by amendment, and since the plaintiff offered to make the necessary amendments, there was error in this ruling also. Because of these errors, it will be necessary to reverse the order appealed from and remand the case for further proceedings.

Order reversed and case remanded for further proceedings, loith costs to the appellant.

Parke, J., dissents.