U.S. Express Co. v. Hurlock

• Decision Date: 27 February 1913
• Parties: UNITED STATES EXPRESS CO. v. HURLOCK.
• Court: Maryland Court of Appeals

87 A. 834

120 Md. 107

UNITED STATES EXPRESS CO. v. HURLOCK.

Court of Appeals of Maryland

February 27, 1913

Appeal from Baltimore Court of Common Pleas; Chas. W. Heuisler Judge.

Action by Alonzo M. Hurlock, administrator de bonis non c. t. a. of Eliza E. Ehrman, deceased, against the Expressman's Mutual Benefit Association, prosecuted after plaintiff's death by Clarence H. Hurlock, executor of Alonzo M. Hurlock for the use of Wilton Snowden, Jr., administrator de bonis non c. t. a. of Eliza E. Ehrman, deceased, against the United States Express Company, garnishee. From a judgment against the garnishee, it appeals. Reversed, without awarding a new trial.

Argued before BOYD, C.J., and BRISCOE, BURKE, URNER, STOCKBRIDGE and CONSTABLE, JJ.

Edward Duffy, of Baltimore, for appellant.

Richard S. Culbreth, of Baltimore, for appellee.

BURKE J.

In February, 1900, Alonzo M. Hurlock, administrator de bonis non c. t. a. of the estate of Eliza E. Ehrman, recovered a judgment in the court of common pleas against the Expressman's Mutual Benefit Association, a corporation of the state of New York, for the sum of $1,967.60, with interest and costs. Pending the suit in which this judgment was recovered the defendant association closed its office in Baltimore and ceased to hold any property in this state. Alonzo M. Hurlock, administrator as aforesaid, was unable to realize anything on the judgment. He died in April, 1910, and letters testamentary upon his estate were granted to Clarence H. Hurlock, who duly qualified. In November, 1910, letters of administration d. b. n. c. t. a. on the estate of Eliza E Ehrman were granted by the orphans' court of Baltimore city to Wilton Snowden, Jr., and by virute of an order of that court Clarence H. Hurlock, executor, caused to be inserted in the place of Alonzo M. Hurlock, administrator as aforesaid, as plaintiff in the above case, the name of Clarence H. Hurlock, executor of Alonzo M. Hurlock, use of Wilton Snowden, Jr., administrator, d. b. n. c. t. a. of Eliza E. Ehrman.

The United States Express Company, the appellant on this record, is a joint-stock company of the state of New York, doing business in this state, having complied with the requirements of law authorizing it to transact business here. The principal office of the company in this state is located in Baltimore city, and J. S. Medairy, of Baltimore city, is its duly appointed agent in this state upon whom legal process may be served. The Expressman's Mutual Benefit Association, the defendant in the above judgment, was the owner of 100 shares of the stock of the United States Express Company, represented by two certificates of 50 shares each, dated August 28, 1903, and March 28, 1904, respectively.

On the 1st day of December, 1910, an attachment was issued on the judgment directed to the sheriff of Baltimore city, and in his return filed on the 12th day of December, 1910, he certified as follows: "Laid on the hands of the United States Express Company, a foreign corporation, by service on John S. Medairy, general agent, on the 1st day of December, 1910, at 4:50 o'clock p. m., in the presence of Charles Kleinjohn and garnishee summoned. I also return with this writ a copy of the notice of seizure of stock which I served on John S. Medairy, general agent of the United States Express Company, a foreign corporation, together with the answer of the said John S. Medairy, general agent as aforesaid, and a copy of a letter in reply to the insufficiency of said answer."

In July, 1911, the sheriff, under the authority of an order of court, filed an amended return, certifying therein, among other things, that the original return was amended so as to read as follows: "Attached and appraised as per schedule herewith returned on the 11th day of July, 1911"--and reciting in said schedule that he had seized and taken by virtue of the writ of attachment "all the right, title, interest, estate, claim, and demand, both at law and in equity, of the said Expressman's Mutual Benefit Association in and to 100 shares of the capital stock of the United States Express Company, a corporation, standing on the books of said company in the name of the Expressman's Mutual Benefit Association, valued at $95 per share, $9,500; total, $9,500. Said 100 shares of stock being represented by two certificates of 50 shares each, and dated August 28, 1903, and March 28, 1904, respectively; as by reference to said return will fully and at length appear."

The garnishee filed a motion to quash the attachment. Testimony was taken, and the motion was overruled. It then filed a number of pleas, which the court upon demurrer held insufficient, and without leave to the garnishee to plead further--being of opinion that it had exhausted all of its defenses to the action--entered a judgment of condemnation against the stock attached for the sum of $3,463.63, and awarded execution. From this judgment, the garnishee has appealed.

The important question in this case is this: Had the court jurisdiction to enter this judgment? If it had not, the judgment is a mere nullity and must be reversed; provided, of course, the case is properly before us upon the appeal of the garnishee. In White v. Solomonsky, 30 Md. 585, it is said that "notwithstanding the Act of 1825, c. 117, which is substantially re-enacted by the Code (article 5, § 12), it has been repeatedly ruled by this court that in a question of jurisdiction, whether a special or limited authority has been pursued or not, the objection may be made here when the case is brought up on appeal or writ of error, although the point is not in fact made below. Bruce v. Cook, 6 Gill & J. 348; Boarman v. Israel, 1 Gill, 381." And in Coward v. Dillinger, 56 Md. 59, the court said: "In cases of foreign attachment, the jurisdiction exercised by the court depends entirely upon statutory provisions. The defendant being a nonresident, and therefore beyond the reach of the process of the court, personal service is out of the question. All property, however, within the limits of the state, whether belonging to residents or nonresidents, is subject to its laws, and the state has a right to prescribe how and in what manner such property shall be subjected to the claims of creditors. It is upon this principle that legislation in regard to attachment laws is founded. The proceeding is in rem--against the res, and not against the person. Being then a jurisdiction derived from statutory law, no principle is better established than that the attachment proceedings must upon their face show affirmatively that the requirements of the statute have been substantially complied with; otherwise the court issuing the attachment would be acting without jurisdiction, and the judgment thereon rendered would be void. Thatcher v. Powell, 6 Wheat. 119, 5 L.Ed. 221; Ronkendorff v. Taylor, 4 Pet. 349, 7 L.Ed. 882; Ransom v. Williams, 2 Wall. 313, 17 L.Ed. 803; Matthews v. Dare, 20 Md. 248. And it is equally well settled that objection to the proceedings on this ground may be taken advantage of on motion to quash, in arrest of judgment after verdict, or without making the objection to the court below it may be relied on on appeal, for the reason that the judgment, if rendered without jurisdiction, is coram non judice. Mears v. Adreon, 31 Md. 229; Bruce v. Cook, 6 Gill & J. 348; Baldwin v. Neale, 10 Gill & J. 274; Boarman v. Israel, 1 Gill, 372; McCoy v. Boyle, 10 Md. 396."

The thing condemned in this case is the stock of a foreign corporation owned by a nonresident of the state, and the stock which is condemned and ordered to be sold is not within the limits of the state. The authority to support the jurisdiction of the court to render the judgment is claimed to exist under section 18, art. 9, and section 68, art. 23 of the Code of 1912. We are of opinion that these provisions of the statute do not authorize the seizure and sale of the stock of a foreign corporation owned by a nonresident, where the stock itself is not within the jurisdiction of the court. Section 68 of article 23 manifestly refers to domestic corporations. It contains provisions relating to the seizure and transfer of the stock which could not be complied with by the sheriff. It imposes duties upon the sheriff, and confers authority upon the court of such a character as excludes the idea that it was the intention of the Legislature to make the section applicable to the stock of a foreign corporation. In case the shares are sold, it declares that "they shall be transferred to the purchaser on the books of the corporation by such sheriff, or other execution officer, or by such person as shall be named by the court to which said writ is returnable." It is made the duty of the corporation to issue to the purchaser at the sale made by the sheriff or other execution officer a certificate of such shares. Section 69 confers upon the court power to punish for contempt all persons who shall refuse to permit the transfer to be made. It was the evident intent of the Legislature to confine the requirements contained in sections 68 and 69 to corporations created by the laws of this state. Stock in a corporation is not attachable except by express statute, and when the statute allows it the authority only extends to corporations existing in the state, and not to the...