Wilmer v. Epstein

• Decision Date: 23 June 1911
• Citation: 81 A. 379,116 Md. 140
• Parties: WILMER v. EPSTEIN et al.
• Court: Maryland Court of Appeals

81 A. 379

116 Md. 140

WILMER v. EPSTEIN et al.

Court of Appeals of Maryland

June 23, 1911

Appeal from Circuit Court of Baltimore City; Alfred S. Niles, Judge.

Suit by Jacob Epstein and others against Edwin M. Wilmer. From a decree for complainants, defendant appeals. Affirmed, and cause remanded.

David Ash, for appellant.

Martin Lehmayer, for appellees.

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

URNER J.

The object of this suit is to restrain the enforcement of a judgment alleged to be void for want of jurisdiction. It is stated in the bill of complaint filed by the appellees in the court below that they are copartners, trading as Baltimore Bargain House, Jacob Epstein, proprietor; that a certain John O'Grady was, in the year 1910, and still remains, in their employ, at a salary of $13 per week, as packer in their millinery department; that his wages were always paid him weekly and never accumulated, and they at no time owed him for more than one week's services; that on or about August 2, 1910, they received a letter from the defendant, in which he claimed that on February 17, 1910, a judgment of condemnation was rendered in his favor against the complainants as garnishees of O'Grady for the sum of $58.39, with interest and costs, by a designated justice of the peace of Baltimore city; that this was the first intimation or notice they had of the existence of the judgment; that they were never summoned in the case in which it was rendered, and the attachment was never laid in their hands; and that the judgment was not recorded and notice given them of its entry until the time for appeal had expired. The bill asserts that the judgment of condemnation is consequently void. A certified copy of the justice's record was exhibited with the bill. It shows that the attachment in question was issued on a judgment against O'Grady for $57.81, and was docketed in the name of the appellant against "Baltimore Bargain House, Garnishee of John O'Grady"; that the writ was returned "served," as was also a subp na duces tecum, issued by order of the judgment plaintiff; that the garnishee failed to appear on the day set for the hearing of the case, and there was a trial ex parte, resulting in a judgment of condemnation for the amount already stated. The writ was directed to a constable of Baltimore city. It contained the usual scire facias clause, commanding the officer to "make known" to the garnishee to appear on the return of the writ and show cause why the attached credits should not be condemned and execution therefor issued. The constable's return is as follows: "By virtue of this writ to me directed, laid in the hands of Baltimore Bargain House, by service on George R. Nelson, Supt., this 27th day of Jany, 1910, at 11 o'clock a. m., and made known this writ to said firm as garnishee as I am commanded, and served notice of day, date and hour of hearing thereof on the said garnishee who refused to receive the same." This was supplemented by the following indorsement: "I hereby certify that on January 27, 1910, I laid the within writ in the hands of the Baltimore Bargain House by service on George R. Neilson, Supt., at 11 o'clock a. m., and that the said Neilson declined and refused to receive the notice of the attachment on the ground solely that the judgment was not attachable."

The bill of complaint makes allegations to the effect that the defendant concealed from the complainants the fact that the judgment of condemnation had been obtained until it was too late for an appeal; that the complainants have never had any moneys property, or credits in their hands belonging to the original judgment debtor which were liable to attachment; that by reason of the act of the defendant in concealing the existence of the judgment the complainants are without remedy at law, as the time within which they could have taken an appeal has expired; that they have not been guilty of laches or negligence in the premises; and that it would be inequitable to allow the judgment of condemnation to be enforced. There were prayers for a cancellation of the judgment, for an injunction against its enforcement, and for general relief. The defendant demurred to the bill, and this appeal is from an order of the court below, overruling the demurrer and requiring an answer to be filed.

It is contended by the appellant that the bill is deficient in not alleging want of knowledge by the complainants of the pendency of the attachment. The theory of this objection is that, even though there may have been no service of process upon the firm sought to be affected by the garnishment, yet, if its members had actual knowledge of the suit, their only remedy was to contest in that action, and on appeal, the jurisdiction of the magistrate to render judgment of condemnation. It is urged, therefore, that, inasmuch as the bill denies that the writ was served upon the complainants, but does not deny that they knew of the attachment in time to make a defense in that proceeding, the demurrer should have been sustained.

It is elementary law that, before a valid judgment in personam can be rendered, jurisdiction of the person of the defendant must be acquired, either by personal service of process upon him or by his voluntary appearance. 2 Poe on Pleading & Practice (3d Ed.) § 62; 23 Cyc. 684. In this case the demurrer admits in effect that the only service of the attachment and scire facias was upon an individual who was not a member of the firm intended to be made garnishees. We do not understand it to be contended that this was sufficient to give the court jurisdiction to render the judgment in question, and it is clear upon principle and authority that such a contention, if made, could not be sustained. Smith Premier Co. v. Westcott, 112 Md. 146, 75 A. 1052; Kittrell v. Perry Lumber Co., 107 Tenn. 148, 64 S.W. 48; Faul v. Beucus, 124

Mich 25, 82 N.W. 659. In 2 Poe on Pleading & Practice (3d Ed.) 62, it is said: "The service of the summons must be a personal one, and the officer charged with the duty of serving it is not authorized to leave a copy of it at the office, residence, or place of business of the defendant and return him as summoned, nor to serve it upon his wife, agent, or partner." Under our statute, it is only where direct service upon the person sued is prevented within the jurisdiction, by "threats, violence, intimidation, or superior...