Sanitary Grocery Co. v. Soper
| Decision Date | 20 June 1924 |
| Docket Number | 18. |
| Citation | 126 A. 54,146 Md. 130 |
| Parties | SANITARY GROCERY CO. v. SOPER. |
| Court | Maryland Court of Appeals |
Appeal from Superior Court of Baltimore City; James P. Gorter Judge.
Suit by William J. Soper against Peter M. Dorsch, in which the Sanitary Grocery Company was garnishee. From an order overruling motion to quash attachment, the garnishee appeals. Order reversed, and attachment quashed.
Argued before THOMAS, PATTISON, URNER, OFFUTT, DIGGES, and BOND, JJ.
Joseph France, of Baltimore, for appellant.
Charles F. Harley, of Baltimore (Michael James Manley, of Baltimore on the brief), for appellee.
In a suit in the Superior Court of Baltimore City against a nonresident defendant, an attachment was laid in Prince George's county in the hands of a garnishee, a corporation of the state of Virginia, which had a place of business at Hyattsville in that county. It had no place of business in Baltimore and no agent there. Acts 1890, c. 549 now article 9, § 46, of the Code of Public General Laws provides that:
"A writ of attachment may be served upon any person by way of garnishment wherever he may be found, either by the sheriff of the jurisdiction where said person may be, or by the sheriff of the jurisdiction where the writ issues; when a writ of attachment is served upon any one outside of the locality of his place of business or residence, the short note shall be set up at the courthouse door of the county or city where the writ is served by the officer serving the same, and upon the return of the writ, a duplicate short note shall be sent by the clerk of the court where the writ issues to the sheriff of that city or county to be set up by him at the courthouse door of said city or county, and the service of any writ and the posting of any short note, wherever a writ of attachment may have been or shall be served and the short note set up in manner as herein provided, shall be valid, and said writs of attachment shall be returned to the courts whence they are issued as other writs are required to be returned."
The attaching creditor has proceeded upon the theory that this statutory provision gives a right to enter suit in any one jurisdiction of the state, and from there to levy attachment upon assets in the hands of any garnishee in any other jurisdiction, making the writ returnable to the court in which the principal suit has been entered. The garnishee upon whom the attachment had been levied on this theory contends that the statute has to do only with the service of writs from the same court which would have had jurisdiction before the enactment; that it has made no change in the forum from which the writ must issue to reach the garnishee, and that the proper court is that of the county of his residence or place of business. The case has come before this court on an appeal from the garnishee's motion, under section 20 of article 9 of the Code, to quash the attachment.
The judges of this court have investigated the practice under the statute in Baltimore city and in several of the counties, and they have found it not uniform. In the courts of Baltimore city, attachments have been sent under this statute to be served upon garnishees in some one or more of the counties. This has been done in a few nonresident attachment suits. Attachments on judgments or decrees have been excepted by the clerks from the operation of the statute because of the impossibility in these attachments of complying with the requirement of a short note to be set up as directed. In the counties where inquiries have been made no instance of a request for an additional garnishment to be sent to another county is known. In the few cases which have come before this court showing garnishment in more than one jurisdiction, an original attachment suit has been entered for it in each jurisdiction. Johnson v. Stockham, 89 Md. 368, 43 A. 943 (1899); Hedrick v. Markham, 132 Md. 160, 103 A. 98 (1918). Compare Bank v. Matthews, 69 Md. 107, 14 A. 703 (1888).
The words of the statute are broad, and taken at their face value lend some support to the creditor's construction. They refer specifically only to service of the writ, however, and not to the place of issuing the writ, which may be served as the statute provides; and there are difficulties in the way of adopting the construction that a departure from previous practice in respect to place of issue, that is, the forum of suit, was intended. Attachments on original process for fraud were already governed by a provision that: "The action shall be instituted either in the county where the defendant resides or where the property proposed to be attached may be located or found, or where the proposed garnishee resides." Article 9, § 38.
Section 46, on the construction now urged, would amend and enlarge that provision by implication so as to permit such attachment suits to be filed anywhere in the state, and the writs to be served anywhere else. But it has never been supposed that the provision respecting the forum of attachments for fraud has been amended at all. See Tonn v. Collins, 116 Md. 52, 81 A. 219. The objection that there are no short notes in attachments on judgments or decrees, which can be set up in compliance with this statute, does require that the statute be construed to except these. Otherwise, on the attaching creditor's construction here, there would be a conflict between its provisions and the provisions of article 17, § 7, of the Code regarding the proceedings for attachment of funds in another county. Again, under the attaching creditor's construction, if goods and chattels rather than credits were attached in the hands of a garnishee, then, under sections 12 and 27 of article 9, custody and sale of them in a distant county might have to be managed by the court and the sheriff of the jurisdiction where the action is instituted. Corner v. Mackintosh, 48 Md. 374; Morton v. Grafflin, 68 Md. 545, 559, 13 A. 341, 15 A. 298.
Another argument against this construction arises from the departure it would involve from the proceedings contemplated in the preceding section with which section 46 is coupled under the title of "Several Attachments." Section 46 according to the preamble of Acts 1890, c. 549, was enacted as a section to be added to this subtitle of "Several Attachments," and to be known as section 44a. Section 44 is now section 45. In so far as no departure is announced in the newer section it would naturally be inferred that it contemplated the same proceedings as those provided for in the older one. And it would be inferred that any change in the law of the older section would have been made by way of amendment of that section rather than be left to implication from an additional section. Yet the construction of section 46 contended for here, without any express statement of such...
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