Weed v. Lewis

• Decision Date: 23 November 1894
• Citation: 30 A. 610,80 Md. 126
• Parties: WEED et al. v. LEWIS.
• Court: Maryland Court of Appeals

30 A. 610

80 Md. 126

WEED et al.

v. LEWIS.

Court of Appeals of Maryland.

Nov. 23, 1894.

Appeal from circuit court, Prince George's county.

Action by Thomas B. Lewis against George B. Weed and others. Judgment for plaintiff. Prom an order denying a writ of certiorari, defendants appeal. Affirmed.

Argued before ROBINSON, C. J., and ROBERTS, PAGE, BOYD, FOWLER, and McSHERRY, JJ.

Wm. A. Meloy, for appellants.

J. S. Rogers, for appellee.

McSHERRY, J. This is an appeal from an order of the circuit court for Prince George's county, refusing to issue a writ of certiorari. The facts alleged in the application for the writ are substantially these: On the 22d day of June, 1894, the appellee caused a writ of attachment and summons to be issued by a justice of the peace of Prince George's county against the appellants, under which attachment certain property of the appellants was seized, and they were notified to appear before the justice on July 16th, at 10 o'clock a. m., the return day named in the attachment They failed to appear on the return day, and the justice entered judgment of condemnation of the property seized. In eight days thereafter the application for the writ of certiorari was made. The application was based upon the assumption that the justice of the peace ought on the return day, and upon the failure of the defendants to appear, to have continued the case for not less than 6, nor more than 14, days for trial, and also upon the alleged irregularity that no bond had been given before the attachment was issued.

In the recent case of Gaither v. Watkins, 66 Md. 576, 8 Atl. 464, it was contended that a certiorari ought not to issue in any case where a party has a remedy by appeal or writ of error; but this court said: "We are not prepared to go to this extent. This much, however, we may say: That, as it is a matter resting in the legal discretion of the court, the writ ought not to be granted in any case where the party has a right of appeal, except for the purpose of testing the jurisdiction of the tribunal below." Now, the Code of Public General Laws gives to justices of the peace jurisdiction to issue attachments by way of execution (Code, art. 52, § 67); also, against nonresident or absconding debtors (Id. § 39); and also for fraud (Id. §§ 6, 45),—when the amount claimed in any of these instances does not exceed $100. It does not appear by the petition for the writ of certiorari to which class of attachments the one complained of belonged; but if it belonged to any, and the amount claimed was not in excess of $100, the justice had undoubted jurisdiction of the subject-matter. If, having jurisdiction of the subject-matter, he subsequently proceeded...