James S. and John Wever vs. Baltzell & Davidson, Garnishees of McCaffrey, 6 G. & J. 335

Buchanan, Ch. J., delivered the opinion of the court.

By the act of 1795, ch. 56, sec. 1, it is provided, that “if any person whatsoever, not being a citizen of this State, and not residing therein, shall, or may be indebted, unto a citizen of this State, or of any other of the United, States, or if any citizen of this State, being indebted unto another citizen thereof, shall actually run away, abscond, or fly from justice, or secretly remove him, or herself, from his or her place of abode, with intent to evade the payment of his or her just debts, such creditor may in either case, make application to any judge, justice, &c.,” and that “on the oath, or affirmation (which oath, or affirmation is prescribed by the act,) of such creditor, made before any judge, &c.” the said judge, justice, &c., shall issue his warrant to the clerk to issue an attachment against the lands, tenements, goods, chattels, and credits of the debtor; upon the receipt of which warrant, together with the proofs on which it was granted, the clerk is required to issue an attachment.

The third

section requires that upon the issuing of every such attachment, there shall be issued therewith, a writ of capias ad respondendum against the defendant, and that a declaration or short note expressing the plaintiff’s cause of action shall be filed, and a copy thereof sent with the writ, to be set up at the court house door by the sheriff. And the fourth

section provides, that the garnishee may plead in behalf of the defendant, any such plea, or pleas, as he might have pleaded if he had been taken under the writ of capias ad respondendum, and had appeared thereto. It is not every creditor, that under that act, would be entitled to the process of attachment, nor under all circumstances; but such a creditor only, as is therein described: a citizen of this State, or of some other of the United States.

Not only was the remedy by attachment confined to a citizen of this State, or some other of the United States, but being a privilege extended to that description of creditors only, it was necessary that a plaintiff, seeking the benefit of that peculiar privilege, should be stated in the proceedings to be a citizen of this State, or of some other of the United States, to bring the case within the purview of that act, and thus to give jurisdiction to the judicial tribunals of the State, which they had not in the case of a creditor of any other description; and being thus restricted and limited in their jurisdiction, could only entertain a case brought within the pale of the act, by describing the plaintiff upon the face of the proceedings, to be the peculiar creditor entitled by its provisions to the process of attachment; the question of jurisdiction in all eases of special and limited jurisdiction, depending upon the case made and presented by the proceedings.

Hence the necessity in proceedings under that act for describing the plaintiff as being a citizen of this State, or of some other of the United States, and the defendant as an absconding citizen of the State, or as not being a citizen of the State, and not residing therein; (they being alone, the description of persons embraced by the act, except in cases of attachments founded upon judgments, in relation to whom the process of attachment was authorised, and jurisdiction conferred on the courts of the State,) to give jurisdiction by presenting on the face of the proceedings, a case within the provisions of the act.

And this seems clearly and peculiarly to be required by the very nature of the proceedings in attachment, under the several laws of this State. In the language of the act of 1795, ch. 56, sec. 1, “such creditor may make application to any judge, justice, <?yc.” and on the oath, or affirmation of such creditor, made before any judge, justice, <^c.” the said judge or justice, fyc. shall issue his warrant to the clerk to issue an attachment, fyc. Such creditor: what creditor ? why a citizen of this State, or of some other of the United States, the creditor before described in the act.

The judge, or justice, therefore, is only authorised under that act, to grant his warrant for issuing the attachment in the case of such a creditor.

And the oath, or affirmation of the creditor, accompanied by the cause of action, (which is also required to be produced,) being alone the ground or evidence upon which the warrant is issued, the citizenship of the plaintiff, and also of the defendant, or the non-residence of the defendant, as the case may be, must be stated in the oath or affirmation, otherwise, there would be nothing to show the jurisdiction or authority of the judge or justice, for issuing the warrant; the declaration, or short note required to be filed, upon the issuing of the capias ad respondendum against the defendant, being subsequent to the warrant for issuing the attachment, furnishing of course, no ground or authority for granting the warrant, and its only office being to express the plaintiff’s cause of action, and that after the warrant has been issued.

And if there be no foundation laid to support the warrant, what ground would there be for the attachment (the fruit of (he warrant) to rest upon. Again, under the act of which we have been speaking, and the act of J715, ch. 40, sec. 3, to which it is a supplement, on the return by the sheriff of the attachment, and of non est inventus to the capias ad respondendum, if the defendant should not then appear, nor the garnishee, in whose hands the goods, &c. of the defendant were attached, to show cause to the contrary, the court is required to condemn the goods, &c. attached.

But unless the citizenship of the parties, or in relation to the defendant, his not being a citizen of the ¡átate, and not residing therein, (as the case may be,) appears upon the face of the proceedings to show the authority of the judge or justice, to grant the warrant upon which the attachment was issued, and to give jurisdiction to the court, (which can only be by a statement in the oath or affirmation of the plaintiff; which, with the production of his cause of action is the prescribed authority of the judge or justice for his issuing his warrant, and the only proof required,) the judgment of condemnation for any thing appearing in the record, might be at the suit of an alien, not embraced by the 1st

section of tbe act of 1795, ch. 56, and to whose case, the jurisdiction of the courts of this State does not extend in proceedings under that section; but is limited to the desczúption of persons therein mentioned. Without such a statement therefore, there could not be a judgznent of condemnation, for the want of jurisdiction being given by the proceedings, and appearing in the record; no znore than in the case of a petition, &c. in a court of limited jurisdiction. And it is no answer to say that the fact of citizenship, See. may be pz-oved at the trial, on the appearance and pleading by the garnishee.

That is true, and to sustain the suit it must be proved. But if jurisdiction is not given to the court by the previous proceedings, the appearance and pleading by the garnishee cannot give it, and the proof and trial would be coram non judice, and judgznent would be arrested on motion, after verdict for the plaintiff. There can be no recovery against a garnishee in a case in which, for the want of juz-isdiction appearing upon the record, the goods of the defendant could not have been condeznned.

A court that would be constrained to quash an attachment, for the want of jurisdiction being given by the proceedings on which it is founded, cannot entertain jurisdiction against a garnishee coming in under the sazne proceedings.

The condeznnation of the goods, and the recovery against the garnishee, are only different actions of the court in the same case, and if the case itself as stated, does not give jurisdiction for the purpose of condemnation of the goods attached, it cannot for the purpose of a recovery against the garnishee, on the evidence given at the trial, being only proof taken in a case not brought by any statement in the proceedings within the jurisdiction of the court. We had supposed that this question had been settled by the decisions of this court. Shivers vs.

Wilson, garnishee of Walker, et al., 5 Harr. and Johns. 130, was a case of attachznent in which Shivers, the plaintiff, was described as being a citizen of the United States.

Wilson, the garnishee, appeared 'and pleaded non assumpsit, by Walker, et al. and nulla bona; and the court at the trial instructed the jury on the prayer of the garnishee, that the citizenship of the plaintiff was not sufficiently set forth in the attachment, and that the plaintiff was not entitled to recover, without giving evidence to the jury to satisfy them that he was a citizen of this State, or some other of the United States; as a man may be a citizen of the United States, but residing in the District of Columbia, or some one of the territories, and not a citizen of this State, or of any other of the United States, of which there was no proof.

And on an appeal to this court by the plaintiff, against whom there was a verdict and judgment, the judgment of the court below was affirmed. It was supposed in the argument of this cause, that that case decides no more, than that it was incumbent on the plaintiff to prove that he was a citizen of this State, or of some other of the United States; and that such proof would have been sufficient without its being stated in the proceedings.

We do not so understand it; and it will be seen that the judge who delivered the opinion of this court, asserts in the whole course of his argument, the necessity for setting out in the proceedings the citizenship of the plaintiff, according to the description given in the act of 1795, in order to give jurisdiction, and that the case must by the proceedings disclose itself to be within the limited jurisdiction, — and assimilates it to the decisions of the Supreme court, upon similar expressions in the constitution of the United States, and the judiciary act of Congress in relation to suits in the courts of the United States, between citizens of different states, the amount of the decision being that it must be both stated and proved.

In Yerby vs. Lackland and others, garnishees of Beeding, 6 Harr. and Johns. 446, the same principle is recognized; though in that case, in addition to the insufficiency of the description of the plaintiff, to bring the case within the provisions of the act of 1795, ch. 56, he appears in point of fact to have been a citizen in the District of Columbia. And in Mandeville vs. Jarrell, 6 Harr. and Johns. 497, where the plaintiff is properly described as being a citizen of this State, proof also of his being a citizen of this State was hold to be necessary.

Since then, the jurisdiction of the courts has been extended by the act of 1825, ch. 114; and by the first

section of that act, it is made lawful for any inhabitant, or inhabitants, or resident, or residents, of any part of the United States, whether of one of the States, or of the District of Columbia, or other territories, and who by the existing laws of this State, may be entitled to sue out, and prosecute mesne process, to have, use, and prosecute the process by attachment. Not however extending the privilege to nonresident foreigners, but restricting it to inhabitants or residents, within the United States.

The same necessity therefore, in order to give jurisdiction, still exists, for describing in the proceedings the plaintiff to be an inhabitant or resident of the United States, fyc.; which before existed for describing him to be a citizen of this State, or of some other of the United States. In this case the plaintiffs appear to have been partners in trade, and the affidavit is made by one of them only, in which he is described as being a citizen of this State, without any notice being taken of the residence of the other; though it appears by admissions at the trial, that he was also a citizen of this State.

The garnishees appeared and pleaded non-assumpsit by the defendant, and nulla bona; and the court below, on the prayer of the garnishees, instructed the jury that one of the plaintiffs not being stated in the affidavit to be a citizen of this Slate, or of the United States, or a resident therein, they were not entitled to recover. The special privilege of suing out attachments, being confined to inhabitants, or residents within the United States, it cannot be extended to plaintiffs of any other description, without a violation of law, and a usurpation of jurisdiction.

And seeing that jurisdiction cannot be taken in a case of attachment, unless it be given by a statement in the affidavit, that the plaintiff, if there is but one, is an inhabitant, or resident within the United States; so neither can it be taken when there are two or more joint plaintiffs, unless they are all stated in the affidavit to be inhabitants, or residents within the United Stales. Each must appear on the face of the proceedings, to he entitled and competent to sue out the process of attachment to give jurisdiction of the case.

That would be our construction of the act of 1795, ch. 56, if there was no other. But the act of 1825, ch. 114, in extending the privilege to an inhabitant, or inhabitants, or resident, or residents, of any part of the United States, clearly contemplates the same proceedings, in the case of two or more joint plaintiffs, as in the case of a sole plaintiff; and means, that where there are two or more plaintiffs, they must all be inhabitants, or residents within the United States.

Here one of the plaintiffs having a joint interest with the other, is not stated in the affidavit to be an inhabitant, or resident within the United Stales. As to him then, the case does not disclose itself by the proceedings to be within the limited jurisdiction of the courts of this State, nor present him as a person entitled to sue out an attachment. The question is not, whether the plaintiffs had a right to attach, if they had proceeded properly, but whether they had proceeded properly. We think they have not, and the judgment will be affirmed. JUDGMENT AFFIRMED,