Northern Central Railway Co. v. Rider 45 Md. 24

The Northern Central Railway Company, Garnishee of Henry W. Shealey and A. Sellers vs. Edward Rider, Jr.

Question as to Regularity of proceedings in Attachment — Soto process is to be served on a Corporation — The attorney of a Corporation not am, a officer ” on whom a Writ of Attachment may be served — Practice.

The mode provided by the Code, Art. 75, see. 99, and the Act of 1868, ch. 47, sec. 212, for serving process on a corporation is, that it shall be served on “the president, or any director, or manager, or other officer of the corporation.” Under proceedings in attachment in which the sheriff’s return stated that he laid the attachment “in the hands of the Northern Central R. R. Co , and summoned company as garnishee,” it was Held :

That the law having designated the character of agents on whom process shall be served, it ought to appear affirmatively by the sheriff’s return upon what person or persons the writ was served, so that the Court could determine whether the service was upon the company.

The sheriff also stated in his return “service admitted by counsel,” and appended thereto was the memorandum “May 30th, 1874, service admitted for the Northern Central R. R. Co., garnishee,” signed “B. C. attorney for N. C. R. R. Co.” On the first day of the Term of the Court to which the attachment was made returnable, a judgment of “ condemnation nisi” was entered against the garnishee, and at the following Term an order was passed by the Court, reciting the order of condemnation nisi and making the same final, there being as stated in the order “no appearance of counsel *25and no pleas having been filed.” Upon a motion by the garnishee at the succeeding Term to strike out the judgment of condemnation, it was Held :

1st. That the attorney of the company was not one of its officers within the meaning of the Code.

2nd.. That a service on the attorney would not have the effect of bringing the corporation into Court so as to give the Court jurisdiction over it.

3rd. That the admission of service by the attorney could not have a greater effect than the actual service on him.

4th. That the admission or memorandum signed by the attorney and returned with the writ must be construed as a waiver of service on the company, and a consent by the attorney to appear voluntarily in the cause for the garnishee.

5th. That the authority of the attorney to waive service and give such consent will be presumed.

6th. That it was proper therefore at the return of the writ, that the appearance of the attorney for the garnishee should have been entered, and the case must be considered as if the appearance bad been so entered.

7th. That under the Code Art 10, sec. 13, if the garnishee appears at the return of the attachment, judgment of condemnation cannot lawfully be then entered.

8th. That in this case the judgment was prematurely entered and the subsequent order of the 2nd of January, 1875, founded thereon, was erroneous.

The order of the Circuit Court refusing to strike out the judgment being reversed by this Court, the case was remanded to the end that the judgment might be stricken out and the regular continuances entered, and the garnishee be allowed! to plead, and that such further steps might he taken, as might be necessary to a trial of the cause upon its merits.

Appeal from the Circuit Court for Baltimore County.

The case is stated in the opinion of the Court.

The cause was argued before Bartol, C. J., Brent, Grason, Alvey and Robinson, J.

*26Bernard Garter, for the appellant.

The judgment of condemnation nisi, entered on the 14th September, 1874, was irregular, unauthorized, null and void, and should be struck out. If this proposition be correct, it will necessarily follow, that the order of January 2nd, 1875, purporting to make said judgment nisi final, must fall, with the fall of the judgment nisi which it purports to make final.

Was then the judgment of condemnation nisi of the 14th of September, 1874, irregular, unauthorized, null and void ?

The record shows, that the only service that was made of the writ of attachment, was made by serving it upon the attorney for the Northern Central Railway Company, the garnishee.

It is very clear, that, in order to make service on a corporation possible, some representative of said corporation must be by law specified as the one on whom the service is to be made, as the corporation being an artificial being, no service could be made on it, except through the instrumentality of a representative of the corporation. Accordingly the Maryland Code provides and specifies how “process” shall be served on corporations. Such “process” may be “served on the President, or any director, or manager, or other officer of such corporation.” Code, Art. 75, sec. 99; Suppt. of 1868, Art. 26, sec. 210.

It is settled law in Maryland, that the word “process,” as here used, applies to the service of writs of attachment on a corporation as garnishee. Boyd vs. C. & O. C. Co. 17 Md., 210.

The Act of 1832, ch. 306, sec. 5, which is the law which is the subject of construction in said case, is codified in the above mentioned 99th sec. of Art. 75 of the Code.

It is also settled law in Maryland, that proceedings in attachment “are in virtue of a special limited jurisdiction, conferred on the Court, and that it must appear, *27from the inspection of proceedings, that everything has been done which the law required as the basis of the authority that has been exercised." Boarman vs. Israel, 1 Gill, 381; McCoy vs. Boyle, 10 Md., 397.

It follows from the foregoing well settled principles, that the return of the sheriff of his service of the writ of attachment, must affirmatively show that he served the writ on some person as the representative of the corporation, upon whom he was authorized to serve "it by the above cited provisions of the Code.

Referring then to the return of service of the writ of attachment in the present case, as made by the sheriff, it is plain, that unless it is to he construed, as a service on the company, by service on its attorney, it is not shown by said return that there was any service on said company at all; because, unless it is so construed, the return does not show on whom said writ was served, and as the above cases show that the proceedings must on their face affirmatively show compliance with the law, and as the law specifies on whom service may he alone made, it is clear that the return must on its face show on what representative of the company service was made.

The question then arises whether- the service of the writ of attachment on the attorney of the M. C. R. R. was a compliance with the provisions of the Code, section 99, Art. 15, or section 210, Art. 26, in supplement 1868.

It is very certain, that its attorney of record, is not one of the persons upon whom, under said sections of the Code, service can be made of “process" to hind said company. He is neither the president, director, manager, nor other officer of the said company. He is simply an attorney at law, acting as such for said company in the trial of its cases. Service upon him therefore was no valid service upon the corporation under said sections of the Code, to bring it into Court and to give said Court jurisdiction over said company, and to authorize a judgment *28to be entered against it. But tbe counsel for tbe appellant does not desire an interpretation to be placed upon his endorsement on the writ, which would make the same meaningless, or deprive the appellee of any right which he could legitimately found thereupon.

Now, although in order to bring into Court, a defendant or garnishee, (which so far as this point is concerned is the same thing,) process must be duly served on the defendant or garnishee as the case may be, if he stands and insists on his rights, yet such defendant or garnishee, whether an individual or corporation may waive this right, and voluntarily appear to the suit, by directing an attorney to appear for him or it, as the case may be. Such direction, to an attorney, and the appearance of the attorney for such defendant or garnishee, in accordance therewith, will bring the defendant or garnishee into Court to all intents and purposes as if process had been regularly served.

But in this event, the party is in Court, because the attorney appears for him or it; and only because of this appearance of the attorney being entered for the party. The admission of service therefore by the counsel for the appellant, of the writ of attachment, for the N. C. R. R. Co. in this case, was, when legally and fairly interpreted, an order to enter the appearance of the counsel for the N. C. R. R. Co. This much, and this much only, the attorney had the right to do.

Being the attorney of the company, the Court will presume that he had been authorized to appear for it, and so the appearance of said attorney, was practically ordered by this admission of service. Except for the purpose of entering his appearance, the attorney had no right to admit service, and so bind the company.

It follows from the foregoing, that there was*an appearance for the N. C. R. R. Co. as garnishee in this case. It equally follows, that there being such appearance, the *29entry of the judgment of condemnation nisi on 14th September, 1874, (which was the return day of the writ,) was erroneous. This is clear, as the only cause for such a judgment, is want of appearance of the garnishee. Art. 10, sec. 18, of the Gode; Evans’ Practice, 137.

Having appeared, he had a right to plead. Evans’ Practice, 139, 147. And a “rule plea” was necessary. Spear vs. Griffin, 23 Md., 431.

All defects in proceedings in attachment can he taken advantage of, even if first taken in the Court of Appeals, and the proceedings must on their face show strict compliance with the requirements of the law. Evans’ Practice, 128 ; Stone vs. Magruder, 10 Gill & J., 385 ; Boar-man vs. Israel, 1 Gill, 373; Risewick vs. Davis, 19 Md., 82.

Wm. S. Keech, and J. T. B. Dorsey, for the appellee.

The order of the Court below overruling the motion to strike out' the judgment, was correct, and the judgment complained of- and appealed from must he affirmed.

The reason first assigned by the appellant, is virtually a plea in abatement, and it comes too late. Mr. Evans says, (Evans’ Practice, 237,) “it is also a rule in Maryland that no dilatory plea can he received after the rule day, unless the fact upon which it is founded occurred after the rule day.” Whittingham vs. Farmers’ Bank, 5 H. & J., 491, 499; 2 Will. Saunders, 2, note 2; Evans’ Practice, 239.

Here this plea was not made until about a month after the third term had begun, and upwards of ten months after admission of service of writ by the appellant’s attorney. It comes, therefore, too late. The appellant, if such plea could he pleaded after admission of service of writ by its attorney, (which the appellee submits it could not do,) ought to have pleaded it at the September Term of Court; it was not done until late in the March Term — • *30the December Term having intervened; the appellant has been guilty of laches, and under no circumstances would a Court admit such a plea after such a lapse of time, still less would it strike out a judgment for any such reason. Walters and Harvey vs. Munroe, 17 Md., 501; Graff & Gambrill vs. Merchants and Miners’ Transportation Co., Garnishee of Bernard, 18 Md., 364.

• The second reason assigned by the appellant for striking out the judgment is equally untenable ; the learned counsel for the appellant says the attachment was not served on any officer of the appellant; the plaintiff’s return, which is prima facie true at all events, in effect says it was ; but whether served on an officer of the company or not, the appellant is estopped from raising that point for the reasons given above,- and also because service of the writ being admitted by the appellant’s counsel, it cannot now question the validity of such admission. The counsel is not right in saying that if the appearance is to be considered as entered, then no such judgment was authorized. In order to prevent condemnation, the defendant or garnishee must “appear at the return of the attachment and show sufficient cause to the contrary,” otherwise “the Court shall condemn the said property and credits so attached and award execution thereof.” Code, Art. 10, sec. 31; see also secs. 17 and 18 of same Art.