Clark v. Bryan

• Decision Date: 15 June 1860
• Citation: 16 Md. 171
• Parties: GEORGE P. CLARK and CHAS. M. JACKSON v. OLIVER BRYAN and BENJ. F. LUNT.
• Court: Maryland Court of Appeals

16 Md. 171

GEORGE P. CLARK and CHAS. M. JACKSON v. OLIVER BRYAN and BENJ. F. LUNT.

Court of Appeals of Maryland.

June 15, 1860

In an action upon a bond, given under the Act of 1854, ch 153, sec. 4, to dissolve an attachment, it was shown by the record in the attachment case, that the defendant was a non-resident, and that judgment by default was given against him, though he was never summoned, or otherwise had notice of the proceedings against him, and never appeared in person or by attorney. HELD:

That this judgment was coram non judice and void, and there can be no recovery upon the bond.

The judgment of a court of competent jurisdiction, when coming incidentally in question is conclusive upon the question decided and cannot be impeached on the ground of informality in the proceedings, or error or mistake of the court in the matter on which they have adjudicated.

But a judgment manifestly rendered without jurisdiction is void, whether the court pronouncing it be an inferior court of limited and special jurisdiction or a superior court of record proceeding according to the course of the common law.

In the case of a judgment of an inferior court of limited and special jurisdiction, the jurisdiction cannot be presumed, but must be shown affirmatively on the face of the proceedings.

But when a judgment of a superior court of record is called collaterally in question, every intendment and presumption is made in its support, and it is conclusive, unless it manifestly appears upon the record that the court acted without jurisdiction.

Where the record shows that the court has proceeded to render a judgment in personam without having jurisdiction over the cause and over the parties such judgment is void and cannot be enforced.

The giving of a bond, by third parties, to dissolve an attachment, is neither, in fact nor in law, an appearance to the action by the defendant in the attachment, nor does it authorize the inference that he had any notice of the transaction, or any opportunity to appear and defend the suit.

APPEAL from the Court of Common Pleas.

The action in this case was brought on the 14th of May 1858, by the appellee against the appellants, on a bond, dated the 5th of October 1857, of the defendants to the plaintiffs to dissolve an attachment in the case of the Plaintiffs vs J. M. Hale. It was agreed that the record and proceedings in the case of Bryan & Lunt vs Hale, should be submitted to the court, and if on them the court should be of opinion the plaintiffs are entitled to recover, judgment should be rendered for them, otherwise for the defendants, and either party to have the right to appeal. The condition of the bond and the proceedings in the case of Bryan & Lunt vs Hall are fully stated in the opinion of this court. The court below (MARTIN, Special Judge ) gave judgment for the plaintiffs, and the defendant appealed.

The cause was argued before LE GRAND, C. J., ECCLESTON and BARTOL, J.

S. Teackle Wallis for the appellants:

1st. Their bond rendered the appellants liable only for such valid legal judgment as might be obtained against Hale, for the payment of which they could maintain an action against him to reimburse themselves. They gave their bond with a knowledge of the fact that the attachment could not be dissolved without Hale's appearing to the action, so as to render him so liable for any such judgment. Act of 1854, ch. 153, sec. 4.

2nd. The writ or summons was not served on Hale personally, so as to be the foundation of a judgment in personam against him. On the contrary, it was returned non est. He cannot be presumed to have appeared, for the Act of 1856, ch. 112, sec. 11, provides the only mode in which he could have done so, and the judgment was rendered against him for not appearing.

3rd. Not having appeared, and having in fact had no notice of the proceeding against him, the judgment was, as to Hale and the appellants a nullity, the court having no jurisdiction to render it, and the jurisdiction of the court may always be inquired into, whether brought in question collaterally or otherwise. 1 Kent, (8 th Ed., ) 280, and cases cited. 9 How.. 336, 348, Boswell's lessee vs. Otis. 11 How., 173, D'Arcy vs. Ketchum. 14 How., 334, Harris vs. Hardeman. 18 How., 404, 406, Lafayette Ins. Co. vs. French, et al. 2 Md. Rep., 429, 451, Wright vs. Wright. 10 Md. Rep., 173, 178, 179, Koechlept vs. Hook's lessee. 11 Md. Rep., 333, 336, Candler vs. Fisher.

4th. Even if Hale had been summoned, or had appeared the case would not have been for trial or judgment until the second term after the impetration of the original writ in May 1858. Acts of 1832, ch. 203, sec. 1, and 1845, ch. 88. A judgment rendered as this was, at the preceding January term, would have been premature. If he had been summoned and had not appeared, the third rule of court, passed in accordance with the Act of 1856, ch. 112, sec. 12, ought to have directed the proceedings against him, and by it on the second day of the term, the clerk should have entered his appearance in proper person. By the 6th rule, also, if a copy of the declaration is not served on the defendant with the writ, the plaintiff may, after filing the declaration and the appearance of the defendant, enter a rule requiring the defendant to plead within fifteen days after service of notice thereof. Neither Hale, nor the appellants who might have notified him, or who might themselves have protected his interest, had any opportunity of doing so, or any such notice as this rule requires. But a judgment by default, for want of appearance, was entered on the return day of the writ, no one being allowed a chance of preventing injustice being done. If he had appeared, he would have been entitled under the most rigid rule, by the very notice annexed to the declaration, to fifteen days to plead thereto. The utmost that can be contended is, that the plaintiffs might have proceeded as if he had appeared. Act of 1856, ch. 112, sec. 11. Neither the rules nor any Act of Assembly provide for the rendering of a judgment against a party who has not been summoned and does not voluntarily appear, for the obvious reason, that the court can have no jurisdiction to render judgment against him in such case.

For all these reasons, it is insisted that, the judgment against Hale was coram non judice and void; that the contingency in which the appellants were to become liable on their bond, never, therefore, arose; that it was the appellees' own fault that they permitted the goods to go from the hands of the sheriff, and the attachment to be dissolved, before an appearance was entered; and that the judgment rendered against the appellants ought, therefore, to be reversed.

Jas. Malcolm, for the appellees:

1st. The obligation of the bond is to satisfy any judgment that may be recovered against the defendant in the case, mentioned in it. A judgment has been rendered in that case. It is said no judgment could be rendered, because there had been no appearance of Hale. This view is negatived by the Act of 1854, ch. 153, sec. 4, which declares that no attachment shall be dissolved, unless every defendant appears to the action, and unless also a bond be given by or on behalf of the defendant or defendants, in a sum of money equal to the value of the property attached, with security approved by the court, or the judge, if in recess, to satisfy any judgment that shall be recovered in such case against the defendant or defendants. The attachment in this case was dissolved under this section, and every thing which the law made requisite to such a result must be considered as having taken place. It could not have been dissolved without an appearance, and the law will not tolerate that the indispensable condition of the privilege it allows should be evaded, while the privilege is enjoyed. The dissolution of the attachment presupposes the appearance, and is a fact only on the theory that the appearance has been entered. The evident purpose and construction of the Act are, that if the defendant wishes to withdraw his property from the grasp of the law he shall do so by coming into court with a bond executed either by him or on his behalf; but, in either event, his bond, because in the one case made by him directly and in the other indirectly. His appearance is necessary for the very purpose of filing the bond. By filing it, he...