Morgan v. Ownbey

CourtSuperior Court of Delaware
Writing for the CourtPENNEWILL, C.J. Per Curiam.
Citation29 Del. 379,100 A. 411
PartiesMORGAN et al. v. OWNBEY
Decision Date27 November 1916

100 A. 411

29 Del. 379

MORGAN et al.

Superior Court of Delaware, New Castle

November 27, 1916

Saulsbury, Morris & Rodney, of Wilmington, for plaintiffs.

Ward, Gray & Neary, of Wilmington, for defendant.

Argued before PENNEWILL, C.J., and BOYCE, J., and thereafter before PENNEWILL, C.J., and BOYCE, CONRAD, RICE, and HEISEL, JJ., as court in banc.


PENNEWILL, C.J. delivering the opinion of the court in banc:

On December 23, 1915, a writ of foreign attachment was issued against the defendant at the suit of the plaintiffs, and the sheriff was directed, by indorsement on the writ, to summon as garnishee the Wooten Land & Fuel Company, and to take bail in the sum of $200,000. The writ was issued on the filing of the usual affidavit prescribed by the statute in such cases, viz.: That the defendant was indebted to the plaintiff in a sum exceeding $50, and that the defendant resided out of the state of Delaware.

The sheriff's return shows that he attached all the shares of the capital stock of said corporation, with all the rights thereunto belonging, and received from the directors a certificate, made part of the return, showing the number of shares held or owned by the defendant to be 33,324 1/3.

On January 17, 1916, a narr. was filed by the plaintiff, and rule pleas by the first general rule day in February. The declaration contained the common counts. There was no bill of particulars filed, but simply the date and amount of indebtedness.

On March 2, 1916, counsel for the defendant, for the purpose and with the intent of entering an appearance for the defendant wrote their names opposite the name of the defendant where it appears in the statement of the case on the appearance docket of the court, and later on the same day delivered to the prothonotary a paper writing containing defendant's pleas to the declaration of the plaintiff. This paper was marked "Filed" by the prothonotary, who also made the following entry in said appearance docket:

"March 2, 1916. Defendant pleads, with copy, nonassumpsit, statute of limitations, payment. Rule reps, and issues by second rule day in March."

On March 13, 1916, a written motion was made and filed by plaintiff's counsel, asking that the appearance of defendant's counsel and the entry thereof made by the prothonotary be stricken out, and that said paper writing containing what purported to be pleas in said case, be stricken from the files of this court.

These are the material and undisputed facts in the case.

On March 14, 1916, counsel for the defendant filed a paper in the nature of an answer to the motion of the plaintiffs, which in substance is as follows:

That said company, while a corporation of this state has never been engaged in business here - all its business and activities being in states of Colorado and New Mexico. That the defendant is a resident of Colorado, and that the stock attached in this case constitutes substantially all of his property.

That a receiver has been appointed for said company by the United States District Court in Colorado, and the market value of said stock has been thereby temporarily destroyed, although in fact of great value, so that the defendant has found it impossible to secure the required bail to procure the discharge of his shares of stock from attachment.

That the defendant has a good defense to the whole of any cause of action stated in said suit, the nature of which is that there exists no indebtedness whatsoever due to the said plaintiffs from the said defendant either at this time or at the time said suit was instituted.

That the entry of bail for the discharge of property seized under a writ of foreign attachment is not a necessary prerequisite for the entry of appearance by the defendant.

That the entry of appearance by the defendant may be made without disturbing the seizure of property thereunder, or its security for any judgment finally entered in the suit.

That the purpose of the writ of foreign attachment is twofold, to wit: To compel the appearance of the defendant, and to devote or apply the value of the property attached to any judgment obtained in this action.

Where, in any case, appearance has been entered by the defendant, and pleas filed, no judgment can be entered until the trial of the issue so raised.

That under our foreign attachment statutes only those corporations that are doing business in this state can be summoned as garnishees.

If the statutes of this state relating to foreign attachment cannot be construed so as to permit appearance and defense in a foreign attachment case without entering bail or security for the discharge of the property attached, then such statutes are unconstitutional under the first section of the Fourteenth Amendment of the Constitution of the United States, in that they deprive parties defendant, in cases brought thereunder, of their property without due process of law.

That such statutes are also unconstitutional because they make an arbitrary, unreasonable and illegal classification of the persons affected by them.

To require the defendant to give bond in the sum of $200,000 to procure the dissolution of said attachment and the release of the shares of stock attached, as a condition precedent to the allowance of an appearance and entry of pleas in bar by the defendant, is oppressive, unreasonable, and in violation of fundamental principles for the administration of justice.

Such is substantially the argument of counsel for the defendant, as contained in their brief.

The plaintiffs dispute, practically, every contention made by the defendant, and insist that he is not in court and cannot make any motion or defense because there can be no appearance in the case without entering special bail.

They rest their case upon the language of the statute and the uniform practice thereunder for more than a hundred years. They claim that never, before the present case, has any one contended that an individual defendant could appear in a foreign attachment case without entering special bail. And, it is argued, while there is no express inhibition in the statue against it, the implication is in the statute against it, the implication is would be. Not only does the providing of one means of appearance exclude any other, but the effect of appearing without entering special bail would take from the plaintiff every advantage of the attachment, and certainly the Legislature did not intend that the statute should be so construed. If an appearance is entered without giving special bail the action becomes, from that moment, an action in personam and is no longer an action in rem; and it is further contended that any judgment recovered in the case after such appearance would be a general judgment, and the lien of the attachment lost. It is not conceivable that the defendant can by simply entering an appearance, deprive the plaintiffs of every advantage gained by their attachment.

The plaintiffs claim that a judgment cannot be entered after the second term, and this being the second term an appearance and trial would cause a continuance and make it impossible to recover any judgment at all under the statute. It is also claimed that the statute, which provides that corporations doing business in this state may be summoned as garnishee, has no application to this case.

To the contention of the defendant that if an appearance cannot be entered without giving special bail, the statute is unconstitutional under the Fourteenth Amendment of the Constitution of the United States, because it deprives parties defendant of their property without due process of law, the plaintiffs reply that the defendant is not deprived of an opportunity to make his defense. Under the statute he may appear and defend the action by giving security to the value of the property attached. This, it is argued, is not an arbitrary or unreasonable requirement, but it is in fact the law of the land in many actions in rem.

We have stated substantially the plaintiffs' argument as made in the case.

It is probably true, as plaintiffs aver, that never before has any one contended that there could be an appearance in a foreign attachment suit against an individual without entering special bail.

This fact does not prove that such an appearance cannot be made, but it is of much significance, and necessarily has some weight with the court. But conceding that the practice has been long and uniform, the defendant argues that the question raised in this case has never been raised before, and that, therefore, it is a new question before the court. Moreover, the defendant says: A case like the present one has never been presented to the court before. The only distinguishing feature, however, is that the amount of bail required is so large that it is impossible for the defendant to furnish it. We cannot regard that fact as sufficient to distinguish this case from others, because in every foreign attachment suit the ability of the defendant to furnish the security required to discharge the attachment depends very largely upon his financial condition. It might be as difficult and impossible for one person to give a small bond as for another to furnish a large one. The large amount of bail required in this case cannot, therefore, take it out of the general rule.

The court are clearly of the opinion that in a foreign attachment suit against an individual, there can be no appearance without entering special bail; indeed, the entering of bail constitutes defendant's appearance. Defendant has produced no case in conflict with this conclusion; and while his reasoning based upon the language of the statute and the rights of defendants, is strong, it is not convincing.

This case involves a construction of a statute of our own state, and cases from other jurisdictions cannot be of much assistance to the court in any event.


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