Johnson v. Stockham

43 A. 943, 89 Md. 368, 1899 Md. LEXIS 76

Opinion

McSherry, C. J.,

delivered the opinion of the Court.

The appellees were indebted to the appellant on two promissory notes and on an open account. Before the notes matured the appellant sued out, under the Act of eh. 648; an attachment in Harford County, and based the proceeding on the allegations that the debt had been fraudu lently contracted, and that the debtors were about to dispose of their property with intent to hinder, delay and defraud their creditors. Subsequently, but on the same day, another attachment was sued out of the Superior Court of Baltimore City by the same creditor against the same defendants, on the same grounds and upon the same causes of action. Under the first writ certain personal property was seized in Harford County ; under the second, entirely different property — a quantity of wheat — was levied on in Baltimore City. The appellees appeared by counsel in the Superior Court for the sole purpose of moving to quash the attachment. A motion was filed and the grounds relied on were, amongst others, that the facts alleged in the affidavit were false and unfounded; and that the defendants had not concealed and were not about to conceal their property with intent to'defraud their creditors, and that they did not fraudulently contract the debts sued on. The motion prevailed and the attachment was quashed. A similar motion was filed in Harford County, and after the attachment which had been issued by the Superior Court had been quashed, a further reason was added to those previously assigned in the Circuit Court for Harford County. This further reason states, that a similar attachment had been issued out of the Superior Court of Baltimore upon the same claims, and for the same reasons; that a motion to quash the writ had been filed; that testimony was heard, and that the attachment was finally quashed upon the same grounds which are set forth in the motion first filed in the Circuit Court for Harford County ; and the ruling made by the Superior Court is relied on as conclusive in the case before the Circuit Court for Harford County. Upon the hearing of this motion the Circuit Court for Harford County directed the last or additional reason to be taken up first, and ruled that the appellees, the defendants below, were entitled to open and close the case. The attachment was quashed upon the sole ground that the question as to whether the debt had been fraudulently contracted was res adjudicata— that the Superior Court of Baltimore having determined that the debt had not been fraudulently contracted, that question was finally and conclusively settled between the parties and could not again be litigated by them so long as the order of the Superior Court quashing the second attachment remained unreversed. From this order of the Circuit Court for Harford County the pending appeal was taken.

Whether or not the judgment entered by the Superior Court of Baltimore upon the motion to quash filed therein, precluded the Circuit Court for Harford County from investigating a similar motion interposed in the latter tribunal, is the predominant inquiry arising on the record. The other disputed questions are subsidiary and of less importance, and will be considered and disposed of later on in this opinion.

Of course, it is conceded that when an issue has once been fairly tried in a Court having jurisdiction of the parties and of the subject-matter, and has been finally decided on the merits, it cannot, except upon appeal, be again controverted by the same parties, in the same or in any other tribunal. There must be an identity of parties; an identity of subject-matter, and a decision on the merits, and jurisdiction over both, parties and subject, or the. defence will not be available. The absence of any of these constituent elements will defeat the plea.

What, then, is the nature of the proceeding in a motion to quash? 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. Certain conditions must exist, varying with the different kinds of attachments, to support the writ. These are jurisdictional and a motion to quash strikes at them and at nothing else. Evesson v. Selby, 32 Md. 340. Their absence will frustrate the attachment. Their non-existence may be apparent on the face of the proceedings; or may be shown by evidence when not so apparent. In either event these juris dictional prerequisites have no relation to the question of indebtedness, but concern only the method resorted to in a given case to secure the defendant’s appearance, and ultimately to subject particular property or specific credits to the payment of that indebtedness. Their existence or nonexistence pertains, therefore, not to the controverted issue of indebtedness, but to the means of securing satisfaction out of the particular property levied on. Consequently, in no sense, can a decision in respect of these jurisdictional matters be a determination of the merits of the controversy. This is obvious. If the defect relied on to support a motion to quash be apparent — that is to say, if some jurisdictional prerequisite does not appear on the face of the proceedings — the mere fact of its absence, though justifying the quashing of the writ, will not prevent the suing out of another attachment where the omitted averments may be supplied. And this is so because the ground of the judgment quashing the first writ would be jurisdictional — that is, would relate to the method of proceeding — and would not involve the merits of the cause of action. Precisely the same result must follow when the defect relied on is not apparent, but is disclosed by evidence. If the jurisdictional requisites be wanting the attachment will be quashed on motion, simply because they are wanting; and this will be done whether the defects be apparent orbe proved. The difference consists merely in the mode of establishing these defects. In the one instance it is by an inspection of the record; in the other it is by the production of evidence. But this dissimilarity in the mode of proof can make no difference in the nature of the thing proved — that is to say, it cannot convert a mere jurisdictional question into a question on the merits of the controversy. This being so, it of necessity follows, that when an attachment has been quashed because the Court out of which it was issued had no jurisdiction to issue it, the decision of that issue can in no way preclude some other Court from sustaining a sim ilar attachment, whether antecedently or subsequently issued.

The attachments issued out of the Circuit Court for Harford County, and out of the Superior Court of Baltimore, were both founded on the same jurisdictional averments. They both alleged that the debts had been fraudulently contracted, and that the debtors were then about to dispose of their property with intent to hinder and delay their creditors. These averments had nothing to do with the issue of indebtedness. If true they gave the Courts jurisdiction to act — if not true there was no jurisdiction. The decision by the Superior Court that they were not true was simply a determination that the Superior Court was without jurisdiction to give judgment of condemnation of the wheat attached; and a decision that the Superior Court was without jurisdiction is not such a decision of the merits as would deprive the Circuit Court for Harford County of authority to determine whether it had jurisdiction to condemn some other property belonging to the same defendants.

But in addition to this : The proceeding by attachment is a proceeding in rem. Coward v. Dillinger, 56 Md. 59. Until the defendants appear to the summons the cause proceeds against the property. The defendants never did appear in the Superior Court, except for the single purpose of moving to quash the attachment. No jurisdiction was obtained over them, and no judgment in personante ould have been entered up against them. The proceeding was, consequently, strictly a proceeding in rem; and the precise question that was, therefore, involved was whether the wheat — the particular property seized under that attachment — was liable to condemnation or not. If the Superior Court had no authority to subject that property to condemnation, because the jurisdictional facts relied on were ascertained and adjudged not to exist; the judgment quashing that attachment had no greater scope than a j udgment in rem, and determined nothing further than that the Superior Court could not condemn the particular property seized under the writ in that proceeding. The finding of the Superior Court that the debt had not been fraudulently contracted, and that the debtors were not about to dispose of their property with intent to defeat their creditors, was a finding upon which its determination, that it had no jurisdiction to condemn that wheat, was founded. The grounds of the decision are one thing — the thing decided is quite a different thing. The thing decided was that the Court had no jurisdiction. Whatever the grounds of that adjudicaion may have been, it is clear, that nothing but the thing decided, in so far as it affects the precise property there involved, or determines the status of that property, can operate as a res adjudicata. It consequently is of no importance in this case upon what ground the Superior Court disposed of that proceeding in rem, because the judgment in such a proceeding is only operative to the extent of the thing or property covered by it.

For these reasons there was error in the ruling which held that the decision of the Superior Court was such an adjudication as would deprive the Circuit Court for Harford County of jurisdiction in the case instituted there.

There was also error in the ruling set forth in the first exception. The plaintiff having the affirmative of the issue of fact to maintain was entitled to open and close the case.

The second exception contains the ruling of the trial Court in admitting in evidence the record of the case in the Superior Court. The reasons we have given for holding that the adjudication by the Superior Court did not deprive the Circuit Court for Harford County of jurisdiction over the attachment proceeding pending there, are sufficient to show that the record from the Superior Court was not admissible in evidence in this case.

The fourth bill of exceptions presents the question first discussed in this opinion.

The other reasons relied on to support the ruling quashing the attachment are purely technical and were not con sidered by the Court below. The additional reason — the one presenting the res adjudicata question — was the only one passed on; and the attachment was quashed on that ground alone, and not generally. We are not called on to decide whether the attachment was properly quashed because of these alleged technical objections; but we will still advert to them. It is claimed first that the attachment was rightly quashed because the record does not contain the voucher upon which the writ was issued ; and secondly, that it does not appear that a summons was issued for the defendants. There is no voucher in the record, but the affidavit which is there does distinctly refer to the voucher. The record shows there was a voucher and the docket entries disclose the fact that by leave of the Court the two notes were withdrawn and copies left in their place. The failure of the Clerk to send a transcript of them along with the record is no ground for holding that the attachment was properly quashed, when confessedly the only ground upon which it was, in fact, quashed, was wholly different. We cannot say the voucher is insufficient when, by an evident error, it is not even before us for inspection. There was a voucher filed. We cannot assume that it is insufficient and then decide that the attachment was properly quashed because the voucher was insufficient. It is altogether possible that the voucher is in fact sufficient, and if we should hold that the attachment was rightly quashed because of there being an insufficient voucher we might do a grave injustice. In. each of the cases cited by the appellees’ counsel the voucher was set forth in the record. In the case of The Presdt. &c. of the Franklin Bank v. Matthews & Co., 69 Md. 107, it was expressly decided that the original vouchers in an attachment case may be withdrawn upon leaving copies, without invalidating the attachment. That is precisely what was done in the case at bar.

As to the objection that no writ of summons was issued, the record furnishes an answer. The Clerk was instructed in writing, on the back of the affidavit, to issue an attachment, and to issue writs of summons against said defendants ; and the Clerk certifies that “all of which was done as directed above.” Under rule 7, regulating appeals, it was the duty of the Clerk to omit from the record the writ of summons, as the defendants had appeared.

(Decided June 20th, 1899).

Because of the errors indicated the order quashing the attachment will be reversed and the cause will be remanded.

Order quashing attachments reversed with costs and cause remanded.