Mears v. Adreon

• Decision Date: 30 June 1869
• Citation: 31 Md. 229
• Parties: BENJAMIN R. MEARS v. WILLIAM ADREON, and Others, Trading as Adreon & Co.
• Court: Maryland Court of Appeals

31 Md. 229

BENJAMIN R. MEARS v. WILLIAM ADREON, and Others, Trading as Adreon & Co.

Court of Appeals of Maryland

June 30, 1869

Appeal from the Court of Common Pleas.

This was an action of attachment brought by the appellees against the appellant, to the May Term, 1867, of the Court of Common Pleas. The defendant was returned " non est," and the attachment was returned "attached as per schedule," the property described in the schedule being the interest of the defendant in a lot of ground in the City of Baltimore. At the return day of the attachment, judgment of condemnation against the property attached was entered by the court, after which no further proceedings were had, until the 22nd of September, 1868, when a writ of fieri facias was ordered upon said judgment and placed in the hands of the Sheriff of Baltimore City.

While this execution was pending the defendant took this appeal. The affidavit on which the warrant of attachment is based was made by Edward L. Thomas, and states "that Benjamin R. Mears not being a citizen of the State of Maryland, and not residing therein, is justly and bona fide indebted unto him the said Edward L. Thomas, and to William Adreon and William J. Adreon, of the United States, in the just and full sum of $453 over and above all discounts." The Justice of the Peace certifies that "at the same time the said Edward L. Thomas produced to me the account and receipts on and by which the said Benjamin R. Mears is so indebted, which is hereto annexed," etc.

The account produced before the magistrate is in these words "Benjamin R. Mears to Adreon & Co., Dr., 1866, December 31st. For money paid to said Mears by said Adreon & Co., at several times to date, being amounts received by said Adreon & Co., from several persons to whom lots in Greenwood were sold by said Adreon & Co., the title to which failed as follows, viz.:" (giving the items) "as appears by the certificates hereto annexed." The ten certificates referred to, were receipts to the respective purchasers, each for the first instalment on a lot in Greenwood, with these words added: "A deed to which in fee simple will be given by the proprietors when paid for in full, according to the terms of sale." The terms of sale in each receipt were as follows: "The price of this lot is one hundred and fifty dollars, five dollars of which being paid as above the balance to be paid in monthly instalments of two dollars per month; any failure to pay the regular instalments for two months in succession will, at the option of the proprietors be a forfeiture of the lot." Each receipt was signed "Adreon & Co., agents for the proprietors." On each of them were endorsed receipts for sundry instalments, and two of them were assigned in writing to Adreon, Thomas & Co.; and two of them to Adreon & Co. The short note accompanying the writ of attachment, was as follows:

WILLIAM ADREON, William J. Adreon, ) In the

and Edward L. Thomas, partners, trading ) Court of

as Adreon, Thomas & Co., ) Common Pleas

v. ) of

BENJAMIN R. MEARS. ) Baltimore

) City.

This suit is brought to recover the sum of four hundred and fifty-three dollars and interest, due and owing from the defendant to the plaintiffs, for money paid by the plaintiffs for the defendant at his request, and for money received by the defendant for the use of the plaintiffs.

(Signed by the plaintiffs' attorneys.)

The cause was argued before BARTOL, C.J., STEWART, GRASON and MILLER, JJ.

Skipwith Wilmer and Daniel M. Thomas, for the appellant.

The attachment proceedings were radically defective, and the judgment rendered thereunder was coram non judice and void.

In the affirmation on which the attachment was based, the debt sued for was alleged to be due by Benjamin R. Mears to "Edward L. Thomas, and to William Adreon and William J. Adreon." And the account filed was an account between Benjamin R. Mears, and "Adreon & Co." It was nowhere alleged that the firm of ""Adreon & Co." was composed of the plaintiffs, and no such inference can be drawn by the court.

This being a proceeding under the attachment law before a tribunal of special and limited jurisdiction, it must appear affirmatively on the face of the papers that the requirements of the statute have been substantially complied with, otherwise the court granting the writ of attachment would be acting without jurisdiction, and the proceeding would be void. Matthews v. Dare, 20 Md. 264; Shivers v. Wilson, 5 H. & J. 130; Yerby v. Lackland, 6 H. & J. 446; Wever v. Baltzell, 6 G. & J. 345; Hinkley & Mayer on Attachments, sec. 212.

And even if the inference could otherwise be made, it is rebutted by the short note, which shows that the plaintiff's partnership name is not "Adreon & Co.," but "Adreon, Thomas & Co."

Thus the account which was produced, does not show any indebtedness "to the plaintiffs," as required by the Code of Pub. Gen. Laws, Art, 10, sec. 4. Cumberland Coal and Iron Co. v. Hoffman Coal Co. 22 Md. 499.

That which purports to be the plaintiffs' cause of action, sets forth no cause of action at all. Dean v. Oppenheimer, 25 Md. 377; Wever v. Baltzell, 6 G. & J. 341; Clark v. Bryan, 16 Md. 177.

But should it be insisted that four of the ten certificates contain evidence of a claim in the plaintiffs as assignees (the other six certificates have no assignments upon them), such construction would not better their case, because if the plaintiffs' cause of action be an assigned one, the short note was fatally defective in having failed so to state it. Code of Pub. Gen. Laws, Art. 10, sec. 10; Dean v. Oppenheimer, 25 Md. 377; Stone v. Magruder, 10 G. & J. 385; Cumberland Coal and Iron Co. v. Hoffman Coal Co. 22 Md. 500.

Furthermore, none of the assignments profess to be assignments of a debt, and consequently they cannot be used to eke out the insufficiency of the account.

If the assignments show anything, they show merely the assignment of an inchoate right to certain lots of ground, on compliance with the terms stated in the certificates assigned, which right cannot be regarded as the subject of a recovery in this attachment, which professes to be for the recovery of a money claim.

And as the defects alleged are all apparent on the face of the proceedings, the court is bound to take notice of them upon this appeal, although no question in regard to them was presented in the court below. And the Act of 1825, ch. 117, does not apply to such questions. Boarman v. Israel, 1 Gill, 381-382; McCoy v. Boyle, 10 Md. 396; Stone v. Magruder, 10 G. & J. 386; Bruce v. Cook, 6 G. & J. 346; Yerby v. Lackland, 6 H. & J. 446; Shivers v. Wilson, 5 H. & J. 132; Hinkley & Mayer on Attachments, sec. 201.

Edward Otis Hinkley, for the appellees.

There is no error in form in any of the attachment proceedings.

The attempt to correct errors, if there be any, ought to be made within the time limited by the Code, viz., a year and a day, or else the limitation is practically of no utility.

If the alleged error consist in a mere matter of evidence, the judgment ought not to be reversed on appeal, unless some opportunity is given in the court below, at some time or in some manner to the plaintiffs, to provide that evidence upon a trial--no trial in this case ever having been had or asked for.

The privilege to appear at all after judgment, as given in the Code, is only that the defendant may make appear what would justly bar the plaintiff.

Independently of the express provision in the Code for appearance within a year and a day, there is no right to set aside a judgment after the lapse of a term. Dawson v. Brown, 12 G. & J. 60; Barney v. Patterson, 6 H. & J. 200; Prentiss v. Gray, 4 H. & J. 192; Freidenrich v. Moore, 24 Md. 308; Walters v. Munroe, 17 Md. 501; Graff v. Merchants, etc., Co. 18 Md. 364; Dawson v. Contee, 22 Md. 30; Evans Pr. 99.

Bartol C.J., delivered the opinion of the court.

The decisions in Bruce v. Cook, 6 G. & J. 345, and Boarman v. Israel, 1 Gill, 372, are conclusive of the question as to the right of this court, on the present appeal, to examine the proceedings in attachment upon which the judgment was rendered, and to determine whether the requirements of the law essential to the jurisdiction of the inferior tribunals have been complied with. It was said by Judge Dorsey, in Boarman v. Israel. "Where a special limited jurisdiction, distinct from and not embraced by its general jurisdiction, is conferred by Act of Assembly on any tribunal, its power to act as it has done must appear upon the face of its proceedings. And when those proceedings are brought up for review in this court, it must appear from their inspection, that everything has been done which the law required as the basis of the authority that has been exercised. To our inquiries into such a subject, the Act...