Coward v. Dillinger

Robinson, J., delivered the opinion of the Court. This is a foreign attachment on warrant issued at the instance of the appellees, against Gr. C. Shields, and laid in the hands of the appellant as garnishee. No appearance was entered, either for the defendant or the garnishee, and on the 13th of May, ÍS^, a judgment of condemnation nisi was entered.

On the 18th of March, 1880, a fi. fa. was issued on the judgment, and on the 30th of the same month, the appellant moved to strike out the judgment for fraud, surprise and irregularity, and a few days thereafter, he also moved to quash the execution. This appeal is from the order of the Court overruling these motions. The question, and the only question in this case is, whether the attachment proceedings, show upon their face, that the conditions precedent prescribed by the statute, as necessary to the exercise of jurisdiction in cases of this kind, have been complied with ? If the Court had jurisdiction over the subject-matter, the motions appealed from were properly overruled.

On the other hand if the Court had not jurisdiction, the judgment rendered is a nullity. It binds no one, and under it no rights are derived. In cases of foreign attachment, the jurisdiction exercised by the Court, depends entirely upon statutory provisions. The defendant being a non-resident, 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 non-residents, is subject to its laws, and the State has the ⁶¹ 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 thereupon rendered would be void.

Thatcher vs. Powell, 6 Wheat., 119 ; Ronkendorff vs. Taylor, 4 Peters, 349 ; Random vs. Williams, 2 Wallace, 349; Matthews & Zollikoffer, Garns, vs. Dare & McClure, 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 in 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 vs. Adreon, et al., 31 Md., 229 ; Bruce and Fisher vs. Cook, &c., 6 G. & J., 348 ; Baldwin vs. Neale & Ridgeway, 10 G. & J., 274 ; Boarman vs.