Tonn v. Linders

Urner, J., delivered the opinion of the Court. An attachment- on original process for fraud was issued out of tho Circuit Court for Wicomico county at the suit of the appellants and was levied upon certain personal property of the appellee in that county. After special appearance for the purpose the appellee moved to quash the attachment upon the grounds, first, that no writ of summons against him was directed to the sheriff of Worcester County where he actually resides, and secondly, that the affidavit upon which the attachment issued was invalid because o-f having been made a long time before it was used in the suit. The motion was supported by affidavit hut no evidence appears to have been adduced.

It may he gathered however, from the record that the fact of the defendant’s non-residence in Wicomico County was practically conceded. The attachment was quashed and' judgment entered for the defendant. It is the action thus taken by the Court below that is presented for our review upon this appeal. ⁵⁴ It appears that at the institution of the attachment proceeding a direction in writing was given to the Olerk of the Circuit Court for Wicomico County to issue “summons to be served on the defendant and to send a copy of the short note -to be set up at the Court-house door.” Upon the approval of the bond the writs of attachment and summons were issued by the clerk to the sheriff of the same county. The former writ was levied 'upon the property already referred to, and the latter was served upon the defendant, who was in Wicomico County at the time.

The contention is that although the defendant - was actually summoned to appear to the plaintiff’s suit, yet inasmuch as the writ of summons was not directed to the county of the defendant’s residence, the Court was without jurisdiction to entertain the proceeding. Section 38 of Article 9 of the Code of Public General Laws, relating to attachments of this character, provides that: “There shall be issued with every attachment issued under the provisions of the two preceding sections, a writ of summons against the defendant, as is usual in actions at law. The action shall be instituted either in the county where the defendant resides or where the property proposed to be attached' may be located or found, or where the proposed garnishee resides; but if the action be instituted in any county other than that wherein the defendant resides the writ of summons against the defendant shall be directed to the sheriff of the comity wherein the defendant resides, returnable to the Court in which the action shall be brought.” It has been held by this Court that: “The object of an attachment is to secure the appearance of the defendant by the seizure of his property (Barney v. Patterson, 6 H. & J. 182 ), and to subject that property to the payment of the debt.” Johnson v. Stockham, 89 Md. 376 . The proceeding is in rem so far as the property is concerned.

Until jurisdiction of the defendant is obtained by summons or voluntary appearance there can be no judgment in personam, but the action, if validly instituted, may nevertheless proceed ⁵⁵ against the property attached. Coward v. Dillinger, 56 Md. 59 ; Johnson v. Stockham, supra. In the case before us if the summons had: boon sent to the sheriff of Worcester County and had failed of service because of the absence of the defendant in Wicomico County, it is clear, under the authorities cited, that this would not have affected the jurisdiction of the Court in. which the attachment was issued to entertain the writ and to proceed to a judgment of condemnation. The practical question to be determined here is whether a summons and actual service in the county in which the suit is brought shall be held less effective to support jurisdiction than a futile summons directed to the county of the defendant’s residence.

In our judgment to sustain as jurisdictional the objection we are considering, under the circumstances of this case, would require an unnecessarily strict construction of the statutory provisions on the subject and would produce a result opposed to their manifest spirit and purpose. When a defendant in such a proceeding can be reached, and is in fact served, with process in the county in which the attachment is issued, and to which the writ of summons is to be returned, there is no possible prejudice that he can sustain from