Friedenwald v. Shipley

• Citation: 24 A. 156,74 Md. 220
• Parties: FRIEDENWALD ET AL. v. SHIPLEY, EXAMINER.
• Decision Date: 18 June 1891
• Court: Maryland Court of Appeals

24 A. 156

74 Md. 220

FRIEDENWALD ET AL. v. SHIPLEY, EXAMINER.

Court of Appeals of Maryland

June 18, 1891

On rehearing.

BRYAN J.

After the decision in this case a motion was made for a reargument. We have carefully reconsidered the grounds of our opinion. The notices given by the examiner were sufficient to enable him to commence his proceedings. But he was nevertheless obliged to observe strictly the statutory method, which was prescribed for the exercise of the special authority conferred on him. When a power is granted to do an act only in a particular way, any essential departure from this way renders the attempted act invalid. This would seem to be a very obvious deduction of reason. It is certainly an unbending rule of law. It is difficult to see how it can be inferred that the examiner's proceedings must be held valid because they had a valid commencement. It is not so held in other cases of special and limited authority. For instance, where an attachment is sued out against a nonresident debtor, the affidavit and account must be duly filed as a preliminary to the issue of the attachment. But the other steps required by the statute must also be strictly observed; the short note must be filed, "expressing the plaintiff's cause of action," and a copy must be sent with the writ to be set up at the courthouse door. An omission of any of these particulars will defeat the jurisdiction. A very familiar instance of the strictness of the rule of law is shown in proceedings to sell land for taxes. It was said in Polk v. Rose, 25 Md. 159 "Each and very step, from the assessment of the property for taxation to the consummation of the title by delivery of the deed to the purchaser, is a separate and independent fact. All of these facts, from the beginning to the end of the proceeding, must exist, and, if any material link in the chain of title is wanting, the whole is defective for want of sufficient authority to support it." See, also, many other cases. In Thatcher v. Powell, 6 Wheat. 119; Chief Justice MARSHALL, speaking of one of these sales, said "That no individual or public officer can sell and convey a good title to the land of another, unless authorized so to do by express law, is one of those self-evident propositions to which the mind assents without hesitation and that the person invested with such a power must pursue with precision the course prescribed by law, or his act is invalid, is a principle which has been repeatedly recognized in this court." In the case in question the land had been sold by an order of court, but the chief justice held that this did not affect the question of jurisdiction. He said: "The arguments is, that the judgment, for these errors in the proceedings of the county court, may be voidable, but is not void; that until it be reversed it is capable of supporting those subsequent proceedings which were founded on it. We think otherwise....