Metal Distributing Co. v. Solar Heating & Air Conditioning Corp.

Singley, J., delivered the opinion of the Court. Metal Distributing Company, Inc. (Metal Distributing), a jobber of parts and fittings used by mechanical ⁶⁶⁴ contractors, sold $74,285.63 worth of such goods t< Thomas W. Moylan Company, Inc. (the Moylan Com pany), and never received payment. Commencing ii March, 1971 Metal Distributing sought, without success to attach the goods and credits of Solar Heating and Ah Conditioning Corporation (Solar), which in some fashion may have acquired the assets or succeeded to the business of the Moylan Company, by actions instituted in the Circuit Courts for Prince George’s and Montgomery Counties. It will be no more successful here.

The opening gambit was made in the Circuit Courl for Prince George’s County where Metal Distributing brought what it called an “action in trover and conversion” against Solar and six individual non-residents: Thomas W. Moylan, Moylan’s wife, their two minor children, and two other people, identified only by name and address. The declaration alleges that the goods sold to the Moylan Company had been converted (in a manner not specified) to the defendants’ use. Shortly after the declaration was filed, Metal Distributing caused a writ of attachment on original process to be issued out of the Circuit Court for Prince George’s County. In the affidavit required by Maryland Rule G42 b. in support of the writ, Metal Distributing’s attorney said: «* * * that Defendant [sic] is bona fide indebted unto Metal Distributing Co., Inc., Plaintiff, in the full and just sum of $74,285.63 over and above all discounts, and at the same time produced the account ledger on which the said Defendant is so indebted,, and filed Plaintiff’s cause of action against the said Defendant which are hereto annexed; and said affiant also made oath and affirmation that he is credibly informed and verily believes the said Defendant: (1) Is not a citizen of the State of Maryland and does not reside therein; (2) Hath absconded or is about to abscond from the State of Maryland; (3) Has assigned, disposed of, ⁶⁶⁵ or concealed, or is about to assign, dispose of, or conceal his [sic] property or some portion thereof with intent to defraud his [sic] creditors; (4) Fraudently contracted the debt or incurred the obligation herein mentioned; and (5) Has removed, or is about to remove his [sic] property or some portion thereof out of the State of Maryland with intent to defraud creditors.” Although it cannot be established from the record before us, Metal Distributing says that goods belonging to Solar were attached.

About a week later, a certified copy of the docket entries in the attachment and short note cases in Prince. George’s County was filed in the Circuit Court for Montgomery County. Writs of attachment were issued and laid in the hands of those allegedly holding funds or credits belonging to Solar. We are not to be understood as passing on the adequacy or propriety of this approach because, as will later appear, the proceeding was deficient in another respect.

Solar filed motions to quash in both courts. The motion filed in Prince George’s County came on for hearing first. That court, in granting the motion and dismissing the writ, noted that when Rules G40 and G41 a. are read together, an attachment upon an action ex delicto may issue only: “Where the debtor is a non resident individual or if a corporation, where the corporation (1) has not a resident agent, or (2) has one or more resident agents and unsuccessful attempts have been made on different business days to serve process either twice upon one resident agent or once upon each of two resident agents.” (Rule G40 a.) or: “Where the debtor has absconded or is about to ⁶⁶⁶ abscond from this State, or if an individual has removed, or is about to remove, from his place of abode in this State with intent to defraud his creditors.” (Rule G40 c.) The court concluded that Solar, a Maryland corporation, did not come within the scope of Rule G40 a.; that Rule G40 c. could not be availed of since there was no proof that Solar had absconded or was about to abscond, and that there was no proof that the individual defendants had participated in the alleged conversion. Solar did not appeal from the order quashing the attachment.

Two months later, the motion to quash the writ of attachment issued out of the Circuit Court for Montgomery County came on for hearing. It was from the order quashing this writ that the present appeal was taken. Metal Distributing complains that the Circuit Court for Montgomery County (Shearin, J.) placed undue reliance on the result reached by the Circuit Court for Prince George’s County (Powers, C. J.). Clearly, the action of the Prince George’s County Court in quashing the writ was not res judicata, since an attachment is an action in rem, and such an adjudication is only determinative of the status of the res over which a court has jurisdiction, Johnson v. Stockham, 89 Md. 368, 378-79 , 43 A. 943 (1899).

It is manifest to us, however, that it was not remarkable that the Montgomery County Court reached the same result reached by the Prince George’s County Court, although we propose to sustain the Montgomery County Court on another ground. In the course of his opinion, Judge Shearin said: “* * * The basic question as to which I have inquired of counsel is what evidence he has to proffer as to whether there is any basis upon which the plaintiff may attach on original process for fraud, in view of the concession that the corporate defendant, whose property has been attached, is fully qualified to do business in the State of Maryland, and has a resident agent ⁶⁶⁷ who is subject to service of process. There is no evidence proffered that there is any actual absconding which has taken place by that corporation, nor any facts proffered in evidence which would justify or