Evans v. Zouck

• Decision Date: 24 February 1937
• Docket Number: 26.
• Citation: 190 A. 523,172 Md. 12
• Parties: EVANS ET AL. v. ZOUCK.
• Court: Maryland Court of Appeals

190 A. 523

172 Md. 12

EVANS ET AL. v. ZOUCK.

No. 26.

Court of Appeals of Maryland

February 24, 1937

Appeal from Circuit Court, Cecil County; J. Owen Knotts, Judge.

Bill by William Sterling Evans and others against George P. Zouck. From a decree of dismissal, the plaintiffs appeal.

Reversed and remanded.

Argued before BOND, C.J., and URNER, OFFUTT, PARKE, SLOAN, MITCHELL SHEHAN, and JOHNSON, JJ.

Joshua Clayton, E. Kirk Brown, and James F. Evans, all of Elkton for appellants.

Benjamin H. McKindless, of Baltimore, and Henry A. Warburton, of Elkton, for appellee.

OFFUTT Judge.

On May 20, 1924, the appellants confessed a judgment in the circuit court for Cecil county in favor of George P. Zouck, in an action on a replevin bond. The amount of the judgment was originally $926.41, but as the result of a proceeding brought by the appellants to have it marked "satisfied," the court allowed credits which reduced the amount (in 1934) to $428.75. Later, in July, 1936, the plaintiff ordered an attachment issued on the judgment returnable to the superior court of Baltimore city. On August 10, 1936, the appellants the judgment debtors, filed in the circuit court for Cecil county in equity, their bill of complaint against Zouck praying that because of certain equitable considerations he be enjoined from prosecuting that attachment, "or proceeding in any manner, looking to the execution" of the judgment. It appeared on the face of the bill that Zouck resided in Baltimore city.

Zouck appeared specially in proper person and in a paper called a "Demurrer to Jurisdiction," but which was in fact a motion to dismiss or an answer, alleged that he did not reside in Cecil county, that he did not carry on any regular business, or habitually engage in any avocation or employment in that county, but that he did reside in Baltimore city. The case was heard on the bill and that pleading, which was supported by affidavit, as though it was a demurrer, and thereafter the court sustained the so called "demurrer" and dismissed the bill. The appeal is from that decree.

The territorial jurisdiction of a court of chancery, unless enlarged by statute, is limited to the area within which its process is effective, 21 C.J. 149, so that "no jurisdiction whatever exists unless the parties to be affected are by service of process or voluntary appearance within the jurisdiction and subject to the control of the court, or the res is within the jurisdiction," Id., McGaw v. Gortner, 96 Md. 489, 54 A. 133. That principle, no doubt, underlay the decision in Dorsey v. Omo, 93 Md. 74, 80, 48 A. 741, that a resident of one county is not within the jurisdiction of the courts of another county. In that case a Bill was filed in the circuit court for Prince George's county against a resident of Howard county to compel the defendant to perform an agreement to assign a mortgage on land in Prince George's county. In holding that the circuit court for Prince George's county had no jurisdiction the court said "Howard County is not within the jurisdiction of the Circuit Court for Prince George's County; and unless there is some statute which confers upon that court authority to entertain such a bill as this for specific performance against a resident of another county, the decree which was passed and which required the mortgagee to assign the mortgage to Mrs. Omo was passed without jurisdiction and is a nullity."

The principle thus announced was recognized in Mexican Cent Ry. Co. v. Pinkney, 149 U.S. 194, 13 S.Ct. 859, 865, 37 L.Ed. 699, as "well settled," and the court in that case said that "no court can exercise, at common law, jurisdiction over a party, unless he is served with the process within the territorial jurisdiction of the court, or voluntarily appears." Prior to 1763 in this state all equitable jurisdiction was in the court of chancery, the jurisdiction of which was coextensive with the confines of the state, Miller's Equity Proc. par. 2, Townshend v. Duncan, 2 Bl. 58, Binney's Case, 2 Bl. 144-145, Maccubbin v. Matthews 2 Bl. 253-254, Alex.Ch.Pr. 9-13, but beginning with chapter 23 of the Acts of 1763 successive statutes conferred upon the county courts a steadily increasing share of the equitable jurisdiction of the chancery court until by the Act of 1815, c. 163, the county courts were vested "with all and singular the powers authorities and jurisdictions, that can or may be exercised by the chancellor of this state, whether the same be derived from the common law, or in virtue of any statute or act of assembly heretofore passed." The chancery court was itself abolished by the Constitution of 1851, which provided that the circuit courts for the counties should have and exercise all the jurisdiction which the county courts had and exercised, or which should thereafter be prescribed by law and that the judges thereof should "in their respective circuits" have and exercise all the power and authority and jurisdiction of the "present court of chancery of Maryland." Const.1851, art. 4, § 8. The powers thus conferred upon the circuit courts were continued and confirmed by the Constitutions of 1864 and 1867. But while the territorial jurisdiction of the chancery court was statewide, supra, it was said by Thomas S. Alexander, respected by the profession in his time and since, for the accuracy and extent of his knowledge of chancery practice in this state, that "the jurisdiction of the county courts as a court of equity, like its...