Evesson v. Selby

Brent, J., delivered the opinion of the Court. The appeal in this case is from an order of the Superior Court of Baltimore city, sustaining a motion made on the part of the garnishees, to quash an attachment on warrant, which had been issued by the appellant against the James River Insurance Company, a foreign corporation, and which had been laid in the hands of the appellees. The affidavit for attachment is made before a J udge of the Supreme Court of New York. Annexed thereto is this certificate: “State of New York, New York city and county, to wit: I, William C. Conner, Clerk of the Supreme Court of the State of New York aforesaid, do hereby certify, that W. T. Clerke, whdse name is subscribed to the above certificate or affidavit, was, on the day of the date thereof, a Judge of said Supreme Court, duly commissioned and sworn, and had authority to administer the oath therein mentioned.” This certificate is duly signed and attested by the seal of the Court.

The substantial defect in this case is alleged to be in the above certificate, because it does not appear by it that the Court therein mentioned is a Court of Record. This objection is founded upon the provision of the attachment law requiring, “if the affidavit be made out of the State, and before a Judge of a Court of Record, there shall be a certifi ³⁴⁵ cate from the Clerk of said Court, under the seal thereof, that at the time the same was made, he was a Judge of said Court, and that the same is a Court of Record.” Art. 10, sec. 6, Code of Pub. Gen’l Laws. The doctrine is familiar, that the proceedings in attachment being wholly statutory, and in contravention to the common law, they must strictly follow the provisions of the statute under which they are authorized.

The plaintiff, to succeed, must follow its directions, and if any of them are omitted, he cannot avail himself of the remedy which it confers. It is only when the conditions, required as precedent to the issuing of an attachment, are fulfilled, that any jurisdiction is given to the Courts to hear and determine the case upon its merits. The wisdom and policy of these conditions, as found in the law, are questions for the law-making powers. They have the right to say what facts are essential to give jurisdiction to the Court, and to direct what shall be the character and form of the evidence to establish them.

The Courts are to construe the law as it is found upon the statute-book, and determine whether its obligations imposed have been complied with. In looking at the attachment law, we find it is expressly provided, that no attachment shall issue without affidavit, and if the affidavit is made out of the State, before a Judge of a Court of Record, it shall be certified by the clerk of that Court, under seal thereof, that the Court, of which he is Judge, is a Court of Record. Both the fact to be established, where the affidavit is made out of the State, and the manner in which it is to be proved, are here distinctly pointed out. The Court must be a Court of Record, and it must be proved to be so b;/ the clerk’s certifying,, under his official seal, that it is a Court of Record.

This is one of the conditions precedent to the issuing of an attachment, and must be fulfilled. If it is omitted, the proof cannot be supplied aliunde, and the defect is fatal upon a motion to quash. It is true, as argued on the part of the appellants, that there need not be a literal compliance with the statute, but a ³⁴⁶ substantial compliance is all that is necessary. Shivers vs. Wilson, 5 H. & J., 130 .

The Act of 1795, ch. 56, required, in