Dorsey v. Kyle

• Decision Date: 27 May 1869
• Citation: 30 Md. 512
• Parties: JOHN T. B. DORSEY v. A. B. KYLE, Trading as DINSMORE & KYLE. SAME v. COMFORT W. DORSEY, Executrix of WM. H. G. DORSEY. SAME v. SAME. SAME v. SAME. SAME v. A. J. HAMPSON. SAME v. CHARLES REESE, et al., Trading as CHARLES REESE & CO. SAME v. ALEX. O. BAUGHER, et al., Trading as P. TIERNAN & SON.
• Court: Maryland Court of Appeals

30 Md. 512

JOHN T. B. DORSEY v. A. B. KYLE, Trading as DINSMORE & KYLE.

SAME v. COMFORT W. DORSEY, Executrix of WM. H. G. DORSEY.

SAME v. SAME.

SAME v. SAME.

SAME v. A. J. HAMPSON.

SAME v. CHARLES REESE, et al., Trading as CHARLES REESE & CO.

SAME v. ALEX. O. BAUGHER, et al., Trading as P. TIERNAN & SON.

Court of Appeals of Maryland

May 27, 1869

The cause was argued before BARTOL, C.J., STEWART, BRENT and ALVEY, J.

Levin Gale and Thomas G. Pratt, for the appellant:

Under the circumstances attending the departure of the defendant from Maryland, and his subsequent detention, no writ of attachment could legally issue. First, because leaving with the intention of returning immediately, he was still a resident of the State of Maryland, and as such not liable to be sued in attachment. Lamden vs. Bowie, 2 Md., 334; Gover, et al. vs. Barnes, 15 Md., 576. Secondly, being detained by military force, and subsequently, under the Proclamation of the President of the United States, of August, 1861, declared an alien enemy, all legal remedies were suspended during the period of hostilities. Griswold vs. Waddington, 15 John., 57; and same case in 16 John., 438; 2 Wallace, 419; Connec. Ins. Co. vs. Hall Americun Law Reg., August 1868, page 606.

The judgment in this case being confessed by an attorney, who upon his own confession, had no authority from the defendant to appear for him in the several actions, is void, and cannot bind him. Critchfield vs. Porter, 3 Ohio, 518; Griggs vs. Gear, 3 Gilman, 2; Archbold K. B. Pi., 26; Merrefield's Law of Attys., 64.

Upon the appearance of Mr. Alexander, for the defendant, the attachment suit was stayed, and should have awaited the action of the Court in the short note case, and the confession of judgment of condemnation, was irregular and void. Walters & Harvey vs. Munroe, 17 Md., 501.

The amount of the draft in favor of Dinsmore & Kyle, having been paid by the appellant three months before any appearance for him, or any confession of judgment, the judgment should be stricken out.

The judgments confessed by Mr. Alexander, acting as attorney for both plaintiff and defendant in the cases of Comfort W Dorsey, were illegal, and ought to be set aside. Anon., 7 Mod., 47; Berry vs. Jenkins, 3 Bingham, 423 ; Simon Mason's Case, 1 Freeman, 74.

James Mackubin and Thomas Donaldson, for the appellees:

The appellant was a non-resident in contemplation of the attachment law of this State, and properly liable to be thus proceeded against. Field vs. Adreon, et al., 7 Md., 209; Haney vs. Marshall, 9 Md., 208; Risewick vs. Davis, 19 Md., 91.

Neither his residence in Virginia, nor his being an officer in the Confederate service, exempted his property in this State from liability for his debts.

The judgments in all of these cases (except Mrs. Dorsey's) were confessed by Mr. Alexander, as Attorney for the defendant on the docket, and were entered in the short note cases as in the garnishee cases, and the defendant is bound by his acts in the cases where he so appeared. Henck vs. Todhunter, 7 H. & J., 275; Munnikuyson vs. Dorsett, 2 H. & G., 379; Bethel Church vs. Carmack, et al., 2 Md. Ch. Dec., 143; Thornburg vs. Macauley, 2 Md. Ch. Dec., 425; Kent vs. Ricards, et al., 3 Md. Ch. Dec., 392.

The judgments in Mrs. Dorsey's cases were not confessed by Mr. Alexander, as attorney for the defendant, nor does he appear as such on the docket. And although the clerk may have erroneously entered them as "by agreement," which agreement did not authorize it, nevertheless, the plaintiff being entitled to judgments at that term, and even at the preceding term, and without any agreement or confession, the judgments should not be disturbed. Code of Pub. Gen. Laws, Art. 10, sec. 13.

These motions are addressed to the quasi equitable jurisdiction of the Court, and are to be determined upon consideration of all the circumstances of the case; it is always with reluctance that motions are granted, and never where there have been laches, or where the judgment complained of has been executed or satisfied. Kemp & Buckey vs. Cook & Ridgely, 18 Md., 138, 139; Montgomery vs. Murphy, 19 Md., 576; Sherwood vs. Mohler, et al., 14 Md., 564; Green vs. Hamilton, 16 Md., 326.

These judgments have all been entered in strict accordance with the law. The motions to strike out were not made until two and a half years after the judgments were entered--ten months after the defendant's return to Maryland, and eight months after he had obtained "all the desired information" in regard to them.

ALVEY J., delivered the opinion of the Court.

Upon a careful examination of the several records before us, we fail to discover any sufficient ground for sustaining the motions of the appellant to strike out the judgments of condemnation.

"Every person who doth not reside in this State, and every person who absconds, may be made a defendant in an attachment," is the provision in our law in regard to defendants in attachments, (1 Code, Art. 10, sec. 2;) and the term citizen, used in the formula of the affidavit prescribed by the 4th section of the Article of the Code referred to, is to be taken as synonymous with inhabitant or permanent resident. Risewick vs. Davis, 19 Md., 93. It is not, therefore, every person who can claim to be a citizen of, or to have domicil in the State, that can be relieved from the process of attachment. In contemplation of the attachment law, the domicil may be in this State, while the actual residence is in another. Matter of Thompson, 1 Wend., 43; Frost vs. Brisbin, 19 Wend., 14; Haggert vs. Morgan, 1 Seld., 428; and Risewick vs. Davis, 19 Md., 96, where the New York cases here referred to are cited and approved.

That the appellant was a non-resident, within the meaning and true construction of the attachment law, we think, is clear beyond doubt. It is insisted, however, that because the appellant was in Virginia during the late war, and had allied himself with the cause of the Southern States and joined the Confederate army, he thereby became an alien enemy, and that consequently "all legal remedies were suspended during the period of hostilities."

While it may be conceded that, by his own voluntary act, the appellant did assume the attitude of an alien enemy to this State and the Government of the United States, yet we cannot for a moment accede to the proposition that all legal remedies were therefore suspended in our own Courts, as against him or his property remaining within the jurisdiction of this State. Such a proposition is as novel in jurisprudence as it would be unjust to creditors. There is no precedent of authority, or principle, known to us, that gives it the least sanction. The case of Griswold vs. Waddington, 15 John., 57, and same case in 16 John., 438, in error, relied on by the appellant, does not in any manner tend to support such a proposition. That was a case growing out of dealings and transactions that had taken place between citizens of hostile countries during the pendency of war, and in contravention of the law of the land. And the proposition there affirmed was, that no valid contract can exist, nor any promise arise by implication of law from any transaction with an enemy during the existence of hostility; and if, after the war has ceased, an action is brought against a citizen upon any contract arising out of such illicit intercourse, the defendant may set up the illegality of the transaction as a defence. This, as was shown by the elaborate discussion and great research of Chancellor Kent, in the case referred to, is a rule firmly established by universal authority. But that is altogether a different proposition from the one involved in the cases before us.

Here the contracts upon which the proceedings were taken, had an antecedent existence to...