Potomac Steamboat Co. v. Clyde

Bartol, C. J., delivered the opinion of the Court. At the suit of the appellants an attachment on warrant was issued against Thomas Clyde, a non-resident, returnable to January Term of the Superior Court, 1870 ; the writ was laid in the hands of the Powhatan Steamboat [178] Company as garnishee, and certain property of Clyde, the defendant, was attached per schedule, consisting of forty shares of capital stock, owned by him, of the Powhatan Steamboat Company. At the same, time an action of assumpsit was brought by the same plaintiffs against Clyde, and a summons issued thereon returnable to the same term. The summons was returned non est, and there being no appearance for garnishee, judgment of condemnation nisi was entered, which became absolute, by the expiration of the term. . In January, 1871, after the lapse of a year and a day, a writ of fieri facias was issued upon the judgment. On the 6th day of February following, Clyde filed a petition and motion to set aside the judgment of condemnation and quash the execution; this motion was on the same day overruled by the Superior Court, and on the following day, Clyde, the defendant, appealed from the judgment of condemnation, and also from the order of the Superior Court overruling his motion. . , On the hearing of the appeal, this Court reversed the order of the Superior Court overruling the motion, and remanded the case for a new trial, “in order that the parties might have an opportunity to produce testimony to sustain or disprove the averments contained in the petition, and the motion be heard and disposed of on its merits.” Powhatan Steamboat Co., Garn. vs. Potomac Steamboat Co., &c., 36 Md., 238. After the case had been remanded, the appellee volunr tarily dismissed his motion to strike out the judgment, &c., for the reason, as alleged, that the stock attached had become worthless. Whereupon the appellants, plaintiffs below, filed their petition in the Superior Court, stating the above facts, and claiming that they were entitled to a judgment by default, for want of pleas against the defendant, Clyde, in the action of assumpsit, and to an inquisition to assess damages therein. [179] (Decided 25th March, 1879.) This motion was resisted by the defendant, for the •alleged reason that he had never been summoned in said case, had never appeared therein, and was not within the jurisdiction of the Court, and consequently no judgment could be rightfully rendered against him. The proceedings show that the summons which had been issued against Clyde, and returned non est at the •January Term, 1870, had never been renewed. The ancillary proceedings in attachment had been regularly prosecuted, and a judgment of condemnation entered therein, and an execution issued thereon. In this proceeding, Clyde appeared by attorney for the purpose of moving that the judgment of condemnation be stricken •out, and the execution thereon quashed. There is no doubt of the legal right of the defendant to •appear for that purpose in the attachment case, without thereby being within the jurisdiction of the Court in respect to the suit against him personally. When we examine the petition and motion heretofore made by the appellee, and which was before us on the former appeal, we discover nothing therein to show that his appearance by attorney was in any other suit except in the attachment case, for the purposes before mentioned, and this being so, such appearance cannot be construed to be a voluntary appearance in the action of assumpsit. That suit had been discontinued, he had never been served with process therein, and consequently the Court could have no jurisdiction or power to render a judgment in personam, against him in that case. Wynn vs. Wyatts, 11 Leigh, 584. In our opinion the Superior Court was right in overruling the motion of the appellants and dismissing their petition, and the judgment will be affirmed. Judgment affirmed.