Steuart & Steuart v. Chappell

• Court: Maryland Supreme Court
• Writing for the Court: PEARCE, J.
• Citation: Steuart & Steuart v. Chappell, 98 Md. 527, 57 A. 17 (Md. 1904)
• Decision Date: 20 January 1904
• Parties: STEUART & STEUART v. CHAPPELL (CHAPPELL, Garnishee).

57 A. 17

98 Md. 527

STEUART & STEUART v. CHAPPELL (CHAPPELL, Garnishee).

Court of Appeals of Maryland

January 20, 1904

Appeal from Baltimore City Court; J. Upshur Dennis, Judge.

Action by Steuart & Steuart against Thomas C. Chappell, defendant and Alcinda M. Chappell, garnishee. From an order quashing an attachment, plaintiffs appeal. Affirmed.

Argued before McSHERRY, C.J., and FOWLER, BRISCOE, PAGE, PEARCE, and SCHMUCKER, JJ.

David Stewart, for appellants.

Frederick C. Cook, for appellee.

PEARCE J.

This case originated in a suit brought in the Baltimore City court March 3, 1902, by the appellants, to recover from Thomas C Chappell for professional services rendered to him. After returns of non est therein, the plaintiffs, on February 28 1903, filed a petition under section 24 of article 9 of the Code of Public General Laws, verified by their affidavit, and on the same day the court ordered an attachment to issue, which was laid in the hands of the appellee, as garnishee of Thomas C. Chappell. Accompanying the petition for the writ of attachment was the following paper, designated in the record "Account and Cause of Action Sued on":

Baltimore, November 1st, 1899.

Thomas C. Chappell, To Steuart & Steuart, Dr.

To professional services rendered from April to October,

1899, both inclusive:

To retainer .............................................	$ 250
To fee for additional services rendered ..................	1,000
	------	$1,250
April 10th, 1899, by check ................................................		250
		------
Balance due ....................................................		$1,000

There was also filed with said account a statement of the numerous services rendered during a protracted litigation, and a detailed enumeration of the various matters considered in the rendering of these services, showing 24 separate and distinct suits. The short note filed with the petition contained the common counts, and one claiming $1,000 due and owing for professional services as attorneys at law. The record also contains the narr. filed in the original proceeding, and the account filed therewith; the latter being as follows:

Baltimore, Md., January 31, 1900.

Mr. Thomas C. Chappell, To Arthur Steuart and James L. Steuart, Partners,

practicing law as Steuart & Steuart, Dr.

Professional services rendered in Baltimore, New York, and $1,000

elsewhere from March, 1899, to October, 1899

The attachment was returnable on the second Monday in March, and was laid in the garnishee's hands March 6, 1903. On March 31, 1903, she appeared by attorney and moved to quash the attachment (1) because of irregularities appearing upon the face of the proceedings; (2) because of an alleged variance between the account filed with the narr. in the original case and that filed as a voucher in the attachment proceedings; (3) because the claim sued on is not a liquidated claim, as required to be in such a proceeding as this. The court sustained the third ground and quashed the attachment, and from that order this appeal is taken, and the appellee has moved to dismiss the appeal.

It is settled in the state that no appeal will lie from an order refusing to quash an attachment, for the reason that such order is an interlocutory ruling, merely. 2 Poe's Practice, § 538; Baldwin v. Wright, 3 Gill, 246 (case No. 9 of that group of appeals); Mitchell v. Chesnut, 31 Md. 527; Parkhurst v. Citizens' Nat. Bank, 61 Md. 259. But since an order quashing an attachment terminates that proceeding, it is necessarily a final order, and from all final orders an appeal lies. Consequently, in Baldwin v. Wright, 3 Gill, 245 (case No. 8 of that group), where the appeal was from an order quashing the attachment, the appeal was entertained, and the order was reversed. That case was decided before the act of 1852, now sections 20 to 23 of article 9 of the Code, which gives the right of appeal to either party where the defendant, before the return day of the writ, files a special petition to have it quashed; thus clearly showing that the right of appeal in a case like the present exists under the general law, and cannot be referred to, or controlled by, sections 20 to 23 of article 9. The motion to dismiss will therefore be overruled.

A suggestion was made at the argument that an attachment cannot be had after two non ests, if the defendant be a nonresident, as it is said he is here; but the right was sustained in Barney v. Patterson, 6 Har. & J. 200, and in Risewick v. Davis, 19 Md. 93, where there was apparently room for question under the language of the act of 1715, c. 40, then in force; and all question was removed when that act was codified in section 24 of article 9 of the Code by the omission of the language upon which the doubt was founded.

The first ground for the motion to quash appears to be that the voucher or account upon which the attachment is based is too vague to be the foundation of any attachment proceeding, and that it should set out in detail the services rendered in each particular case, and the sum claimed as compensation in each, but we do not agree with this contention. It has been held, where an indebtedness is for money loaned at different times, that it is not necessary, in order to comply with the provisions of the attachment law, that the account should specify the dates and amounts of the several loans (Cox v. Waters, 34 Md. 460; Summers v. Oberndorf, 73 Md. 316, 20 A. 1068); and this ruling, we think, is decisive of the present objection.

The second ground is an alleged variance between the account sworn to at the time of issuing the attachment, and that filed with the original declaration, in respect of the total amount charged for the services rendered. But if there be such variance, it is wholly immaterial. The account filed with the original declaration was filed under the rule-day (Acts 1894, p. 229, c. 173); and the defendant never having been summoned, and this act never having been called into operation in this case by seeking a judgment by default, the appellants cannot be prejudiced in this proceeding by anything in that account. McSherry v. Brooks, 46 Md. 122; Laubheimer v. Naill, 88 Md. 174, 40 A. 888. The rule-day act can have no effect whatever upon proceedings under the attachment law. Sanborn & Mann v. Mullen, 77 Md. 480, 26 A. 872.

The third objection is that the claim is not liquidated, and therefore will not sustain an attachment proceeding such as that before us. Upon this point, Mr. Rood, in his recent work on Garnishment (section 148), thus states the law "Demands, the amount of which cannot be ascertained by computation, but only by the verdict of a jury, or in other similar manner, are not included in the terms of statutes declaring what property and debts may be attached by garnishment." And Mr. Poe, in his work on Practice (section 415), says: "As the result of the authorities, it may be stated that the claim, in order to be within the act, must be one for an ascertained amount of liquidated indebtedness to which a plaintiff can safely and properly swear; and the cause of action which must be filed with the declaration must be one which either on its face shows the liability of the defendant, and the amount of such liability, or which itself furnishes the standard or means of arriving at such liability." Mr. Poe is speaking here of the practice under the special rule-day act, but he had just said in section 414: "It is to be observed that the requirements of the act in respect of the cause of action are identical with those of the attachment law against nonresidents, and the decisions upon the latter are therefore applicable to the former." And he is supported in this by the decision in State, Use of Bouldin, v. Steibel, 31 Md. 37. Before the act of 1888, c. 507, now section 43 of article 9 of the Code, unliquidated damages could not be recovered by attachment in this state, except where the action was for illegal arrest,...