Hoffman v. Reed

Alvey, J., delivered the opinion of the Court. This is a proceeding by attachment, taken under section 7 of Art. 45 of the Code, to affect the property of a married woman. The Code authorizes the proceeding, “upon petition and proof of claim, according to the circumstances of each case.” The proceeding is purely one in rem, no [374] personal judgment being contemplated by tbe statute; and hence no summons is required to be issued to the party whose property is sought to be affected. Brent vs. Taylor & Marks, 6 Md., 58. The only notice required to be given, apart from the seizure of the property, or the notice to the garnishee, is the putting up of a copy of the short note, framed upon the claim of the plaintiff, at the Court-house door. Brent vs. Taylor, supra. The preliminary proof of claim, in order to procure the order of Court for the attachment, is entirely ex parte; and be’cause of its ex.parte character, and the absence of all personal process against the party whose property is sought to be seized and condemned, it is incumbent upon the Court, to which the petition is addressed, to see that a fair prima facie case is made out by the plaintiff, within the terms of the statute, before- ordering the attachment to issue. Otherwise the grossest injustice might be. done by enforcing claims against the small earnings-of married women, that could not for a moment be supported if brought to the test of a fair and impartial trial in the ordinary course of legal proceeding. In this case, the petition and affidavit proceed upon a claim for $200, for professional services rendered by agreement, and for cash money laid out and advanced for the benefit and advantage of the defendant, at her request,- “ as appears by the open account hereto annexed.” Tbe account annexed is simply in this form : “To professional service, as per agreement, $200,”. How much for professional service, and how much for money advanced, the account does not show. Nor does it show the nature of-the services rendered; — whether for that of a doctor, lawyer or artist. The variance between the claim as set forth in the petition and affidavit, and that set forth in the account filed, is patent and fatal. The affidavit was made to prove a claim for services, and for money advanced, without designating how much on either account; while the account is for services alone. [375] Rut, in addition to this objection to the proceeding on the ground of variance, the account filed as the basis of the proceeding is altogether too indefinite. The affidavit to such an account proves nothing with any degree of certainty. The affidavit refers to the account exhibited as a voucher of the claim ; but when we turn to the account, it not only shows a variance from the claim as stated in the affidavit, but it shows nothing in regard to the real nature and extent of the claim, as set forth in the affidavit. In the case of Cox vs. Waters, 34 Md., 460, it was said by this Court, “ that an account simply, ‘ for goods bargained and sold at sundry times/ and stating merely the aggregate amount of the debt, would not be a substantial compliance with the Code; because it would not give to the debtor, or other persons interested, any certain notice or information as to the real nature and character of the claim.” And if an account made out in that form would not be sufficiently certain to gratify the requirement of the statute, in a case such as that, it would seem to he quite clear that the account filed in this case, where there is even greater necessity for certainty and precision in the claim, must he regarded as altogether deficient in the requisite certainty as to the real nature of the demand. There were three several motions made in this case: 1st, to strike out the judgment of condemnation entered on the sheriff’s return to the attachment; 2nd, to quash the attachment, and, 3rd, to quash the execution issued on the judgment of condemnation. All these motions were overruled by the Court below ; but we think they should all have been sustained. The attachment proceeding was fatally defective, and formed no sufficient foundation for the judgment rendered thereon. And the present appeal from the refusal to strike out the judgment of condemnation, and to quash the attachment, brings under review of this Court the [376] errors apparent in the proceedings, upon which the judgment is founded. Boarman vs. Israel and Patterson, 1 Gill, 372; Mayer vs. Soyster, 30 Md., 402 ; Hall vs. Holmes, 30 Md., 558. (Decided 13th January, 1882.) It must not he understood,' however, from this decision, that if the question of the validity of these proceedings, had arisen in a collateral proceeding, that they would have been declared utterly null and void. In such case, different considerations would arise. See 6 H. & J., 132. Judgment reversed, and proceedings quashed.