Hedrick v. Markham

Briscoe, J., delivered the opinion of the Court The appellee sued out an attachment on the 27th of April, 1917, in the Superior Court of Baltimore City, against the appellant, a non-resident of the Stale, and it was. laid in the hands of the National Bank of Baltimore as garnishee1, and the bank was summoned. On the 1st of Hay, 1917, the absent defendant appeared, and filed a petition under section 20 of Article 9 of the Code, for an immediate return of the writ before the return day, so as to permit a motion by him to quash and set aside the attachment and for an immediate hearing of the case. The prayer of the petition was granted, and on the 3rd of Hay, 1917, the defendant filed a motion to quash, alleging and urging six reasons in support of the motion. Upon a. hearing by the Court below the motion to quash was overruled and from this order so entered the defendant has appealed.

The first and fifth grounds relied upon in the Court below have been abandoned in this Court. The remaining four assigned in the motion and relied upon here are first: because the voucher annexed to the affidavit is not a sufficient cause ¹⁶² of action; second, because no sufficient short note was filed with the attachment; third, because the claim or cause of actipn stated and set out in the annexed voucher and affidavit is for unliquidated damages; and fourth, because there was then pending in the Circuit Court for Harford County, by this ■ plaintiff against the defendant, a similar attachment proceeding for the same cause of action, to which he was duly summoned and to which he appeared in the short- note case, filed approved bond, and the Court on motion dissolved the attachment. The proceeding by wa.y of attachment against a nonresident debtor is in this State regulated and governed by statute. The jurisdiction of the Court, in such cases is held to be special and limited and it is a proceeding that can only be maintained by a substantial compliance with the provisions and the requirements of the statute under which it is authorized. 2 Poe's Pl. and Pr. 502; Franklin v. Claflin, 49 Md. 24 ; Evesson v. Selby, 32 Md. 340 ; Mears v. Adreon, 31 Md. 229 ; Tonn v. Linders, 116 Md. 52 .

By section 4 of Article 9 of the Code it is provided: Ho attachment shall issue (except as hereinafter mentioned) unless, there be an affidavit that the debtor is bona fide indebted to the creditor in the sum of * * *, over and above all discounts; and at the time of making the affidavit the creditor shall produce the bond, account and other evidences of debt, by which the said debtor is so indebted; and shall also malee affidavit that he knows, or is credibly informed and verily believes that the said debtor is not a citizen of this State and that he doth not reside therein; or if the said debtor resides in this- State, that he doth know, or is credibly informed - and '.verily believes that the said debtor hath absconded. In the present case the attachment suit was brought to recover the sum of five thousand three hundred and eighty-nine dollars and t:venty-five cents, being an alleged balance due and owing from the defendant to the plaintiff on an account and contract produced and exhibited the items, debits ¹⁶³ and credits being set forth in the account and on the contract by which the defendant is alleged to- be so- indebted. The short- note is in the usnal form and declares upon the common counts in assumpsit. The affidavit- required by the statute is in proper form and contains the jurisdictional averments as a basis for the action.

The first objection raised by the appellant’s motion is, that the voucher annexed to the affidavit is not a sufficient cause of action. While the voucher and evidence of debt is required by the statute to bo produced and must be annexed to the affidavit, it is well settled that if the bond, account, or other evidence of debt so annexed show a prima facie ease of indebtedness from the defendant to the plaintiff, it will he a sufficient basis for the attachment. A creditor is not required to produce all his proofs of the