Mears v. Adreon

Bartol, C. J., delivered the opinion of the Court. The decisions in Bruce & Fisher vs. Cook, 6 G. & J., 345 , and Boarman vs. Israel & Patterson, 1 Gill, 372 , are conclusive of the question as to the right of this Court, on the present appeal, to examine the proceedings in attachment upon which the judgment was rendered, and to determine whether the requirements of the law essential to the jurisdiction of the inferior tribunals have been complied with. It was said by Judge Dorsey, in Boarman vs. Israel: “Where a sjoeeial limited jurisdiction, distinct from and not embraced by its general jurisdiction, is conferred by Act of Assembly on any tribunal, its power to act as it has done must appear upon the face of its proceedings. And when those proceedings are brought up ²³⁵ for review in tins Court, it must appear from their inspection, that everything has been done which the law required, as the basis of the authority that has been exercised.

To our inquiries into such a subject, the Act of 1825 interposes no obstruction; it has no application to them.” And citing from the case of Bruce & Fisher vs. Cook, he says, “ If there be error in the proceedings on which an attachment had issued, by reason of which the jurisdiction of the Court did not appear, it would have been a fatal objection after verdict on a motion in arrest of judgment. The garnishees might have taken advantage of it if a jury had been sworn, by a prayer for the instruction of the Court, or after verdict and judgment against them, without raising the question below, it might on appeal or writ of error, have been assigned as error there, and this court would have taken notice of and sustained it.” It woxild appear, therefore, to be the settled law of this Court, that upon an appeal like this from the judgment of condemnation in attachment, the question of the regularity and sufficiency of the proceedings is open to inquiry here, although no motion has been made in the Court below to set aside the judgment, or any motion to quash before the judgment was rendered. The time allowed for an appeal from judgments at law is three years. Code, Art. 5, sec. 7.

This provision relates to judgments of condemnation in attachment. Under the attachment law, execution upon the judgment of condemnation cannot be issued before the lapse of a year and a day after the return of the attachment, unless the plaintiff gives bond conditioned to make restitution, if the defendant shall, within that period, appear to the original action, and make it appear that the claim of the plaintiff, or some part thereof, is not due to the plaintiff. Art. 10, sec. 13. Ry this provision the defendant is allowed the year and ²³⁶ day to come and defend the action upon its merits, in the same Court from which the attachment is issued.

But this restriction has no reference or application to the time for exercising the right of appeal; this is regulated by Art. 5, sec. 7, before cited. " ’ The present appeal was taken within the time allowed. We proceed therefore to consider whether there are errors or defects apparent upon the record which entitle the appellant to a reversal of the judgment. There is a manifest discrepancy between the affidavit, the account produced, and the short note.

The first alleges an indebtedness of the appellant to Edward L. Thomas, William Adreon and William J. Adreon; the account purports to be an account of Adreon & Co. against the appellant; while the short note declares for money due to William Adreon, William J. Adreon and Edward L. Thomas, partners, .trading as Adreon, Thomas & Co. It thus appears that the account exhibited is in the name of one firm, while the action itself, to which the attachment is auxilliary, is instituted by a different firm; without any averment upon the proceedings to show that the parties composing the two firms are the-same ; or anything to show that, by an assignment or otherwise, the rights and