Dirickson v. Showell

• Court: Maryland Supreme Court
• Writing for the Court: McSHERRY, J.
• Citation: Dirickson v. Showell, 79 Md. 49, 28 A. 896 (Md. 1894)
• Decision Date: 13 March 1894
• Parties: DIRICKSON v. SHOWELL.

28 A. 896

79 Md. 49

DIRICKSON v. SHOWELL.

Court of Appeals of Maryland

March 13, 1894

Appeal from circuit court, Worcester county.

Action by James C. Dirickson against Lemuel Showell. From an order quashing an attachment issued on plaintiff's prayer therefor, he appeals. Reversed.

Argued before ROBINSON, C.J., and BRYAN, BRISCOE, McSHERRY, FOWLER PAGE, and BOYD, JJ.

W. S Wilson and C. D. Collins, for appellant.

W. T Dickerson, for appellee.

McSHERRY J.

James C. Dirickson sued Lemuel Showell, Jr., in the circuit court for Worcester county to recover the sum of $240.66. The claim arose in this way: Showell owned and held a promissory note made by A. D. Massey and wife for the payment of the sum of $2,000, with interest from May, 1890. which note he contracted to sell and deliver to Dirickson for the sum of $1,850, but, though the stipulated price was tendered to him he subsequently refused to deliver the note as he had agreed to do. The difference between the face value of the note, with interest added, and the sum of $1,850, is the amount claimed by Dirickson. The summons issued for the defendant was returned non est, and was renewed to each of the four succeeding terms of court, but each time was likewise returned by the sheriff non est. Thereupon the plaintiff presented to each one of the judges of the circuit court the claim sued on, duly verified by affidavit, and accompanied by evidence of the several returns of non est, and made application for an attachment against the lands, tenements, goods and chattels, and rights and credits of the defendant, under section 24, art. 9, of the Code. The attachment was ordered, and was subsequently issued, and under it certain lands and tenements of the defendant were attached. A motion to quash the attachment was then filed. The motion prevailed, and the attachment was quashed. From that judgment this appeal was taken. The reasons assigned for the motion to quash were: First, because there was no sufficient affidavit; second, because the voucher annexed to the affidavit was insufficient; third, because the attachment was not founded on a warrant issued by a justice of the peace; fourth, because no sufficient short note was filed; fifth, because the claim was for unliquidated damages; and, sixth, for other reasons apparent on the face of the papers.

It will be observed that this is not an attachment founded upon a warrant, though many of the principles and much of the procedure governing such attachments are applicable to attachments issued under section 24, art. 9, of the Code above referred to. That section provides that "when two summonses have been returned non est against the defendant in any of the courts of law of this state, the plaintiff, upon proof of his claim as hereinbefore required, shall be entitled to an attachment, and the judge of the court where such action is pending shall order such attachment to issue, and the same proceedings shall be thereupon had as in attachments issued against absconding debtors." This court has held that the plain meaning of this section is that, when an action is pending in any court of law, which the court in exercise of its general jurisdiction has the power to try and decide, provided jurisdiction over the person of the defendant be obtained by service of the summons upon him, and in such a case there are two returns of non est to two successive writs of summons, then the judge is authorized to regard such returns as evidence that the defendant is a nonresident or absconding debtor; and, if the plaintiff's cause of action be such as would entitle him to an attachment on warrant, the judge is authorized and directed to order the attachment to issue, provided the plaintiff produces before him the same proof of his claim that he would be required to produce before the magistrate in order to obtain his warrant to the clerk of the proper court to issue an attachment. When the attachment is thus ordered by the judge it is subject to the same conditions, and the same proceedings must be had upon it as if it were an attachment on warrant, with the single exception that the order of the judge supersedes and takes the place of the warrant of the magistrate. Randle v. Mellen, ...