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2. DEPOSITIONS (8 66*) – EXAMINATION OF breached the contract, where its breach had


[Ed. Note. For other cases, see Trial, Cent. The rule that an objection to a question Dig. 88 569-576; Dec. Dig. & 242.*] as leading must be made at the time to give the examiner opportunity to reframe the ques

Appeal from Baltimore City Court; Thos. tion cannot be dispensed with in taking depo- Ireland Elliott, Judge. sitions in another state, on the ground that

Assumpsit by Charles Tatham, assignee of defendant was not represented when plaintiff took the depositions because of the expense of the Patapsco Stone Company, against Hilton being represented.

J. Doggett. From a judgment for plaintiff, [Ed. Note. For other cases, see Depositions, defendant appeals. Reversed, and new trial Dec. Dig. § 66.*]


BRISCOE, BURKE, PATTISON, URNER, While the admission of immaterial evi- and STOCKBRIDGE, JJ. . dence is unfortunate, as having a tendency to confuse the issues in the minds of the jury, Joseph N. Ulman, for appellant. J. Royall it will not be ground for reversal where it is Tippett, for appellee. not apparent that any injury resulted therefrom, especially as much latitude must be allowed to the discretion of the trial court as STOCKBRIDGE, J. The facts out of to the materiality of the evidence sought to be which this litigation arises are comparativeelicited.

ly simple. On the 14th of April, 1906, the [Ed. Note. For other cases, see Appeal and Error. Cent. Dig. & 4153-4160; Dec. Dig. & Patapsco Stone Company, a corporation or1050.*]

ganized under the laws of New Jersey, en4. PLEADING ( 382*)—PROOF-GENERAL Is-tered into a contract with Hilton J. Doggett

to furnish for his account to customers to SUE.

Under a plea of the general issue in as- be secured by him refuse or powdered soapsumpsit upon common counts for the value of stone to the extent of at least 500 tons every soapstone sold to defendant, defendant could three months, the same to be delivered f. o. b. give evidence, by way of recoupment, of any damage sustained by any breach of plaintiff's car at Marriottsville, at a stipulated sum per contract to deliver the stone.

ton, and by a letter dated May 22, 1906, to [Ed. Note. For other cases, see Pleading, furnish crude soapstone in bulk f. o. b. cars Cent. Dig. $$ 1280-1294; Dec. Dig. § 382.*] Marriottsville, at a different price. On the 5. TRIAL ($ 139*)-JURY QUESTION.

21st of June the defendant notified the stone If there is any evidence, however slight, company that he had orders for 2,865 tons upon the material questions involved, the court to be shipped during the ensuing 12 months, should not withdraw the case from the jury.

[Ed. Note. For other cases, see Trial. Cent, and by letter dated June 27th the stone comDig. 88 332, 333, 338-341; Dec. Dig. & 139.*]

pany advised the defendant that they would

undertake to fill orders for the amount so 6. SALES (8 161*) - REJECTION OF CASE PLACE.

named by him. The contract between the A purchaser is bound to accept or reject parties contained this stipulation: That “the the goods at the place of delivery f. 0. b. party of the first part (the stone company)

[Ed. Note. For other cases, see Sales, Cent. shall ship all the refuse or powdered soapDig. $$ 377–380; Dec. Dig. § 161.*]

stone produced by it that the party of the 7. TRIAL (8 199*) - INSTRUCTIONS - SUBMIT- second part can find customers for up to the TING QUESTIONS OF LAW.

limit of its operations, except in case of loss An instruction in assumpsit for goods sold or damage by fire or water, accidents or unand delivered under contract, authorizing recoupment by defendant, provided the jury avoidable delays beyond the control of the found that "defendant was not in fault under party of the first part, and also except in the contract," was erroneous as submitting to case the said party of the first part should the jury not only what constituted the con- for any reason cease operations."

The detract, but also what its proper interpretation was, which were for the court.

fendant appears from time to time to have [Ed. Note.-For other cases, see Trial, Cent. sent in orders to the stone company, and the Dig. $$ 467–470; Dec. Dig. § 199.*]

same were shipped by the company up until 8. TRIAL ($ 141*)—QUESTIONS FOR JURY-AD- | August, 1906, when by reason of a freshet MITTED FACTS.

a landslide took place at the quarry of the An asserted right of recoupment for breach company, and they ceased to make further of contract by defendant in assumpsit for goods deliveries, although they do not seem as late sold and delivered necessarily admitted defendant's breach of the contract, making it error as the month of September of that year to to submit that question to the jury.

have abandoned the idea of carrying on [Ed. Note. For other cases, see Trial, Cent. business, and from that account filed with Dig. $ 336; Dec. Dig. § 141.*]

the declaration shipments appear to have 9. TRIAL ($ 242*)-INSTRUCTIONS-MISLEAD- been made as late as August 31st and SepING INSTRUCTIONS.

tember 3d. The present suit is brought by An instruction in assumpsit on the com- the assignee of the stone company against mon counts for goods sold, in which defendant the defendant to recover for certain stone,

of misleading where it submitted as a question both crude and powdered, alleged to have of fact whether defendant had itself also I been delivered upon the plaintiff's order, and

*For other cases see same topic and section NUMBER in Dec. Dig. & Am. Dig. Key No. Series & Rep'r Indexes

not paid for. The suit is in the form of an | to be objectionable upon this ground, the obaction of assumpsit upon the common counts, jection and the reason for it must be noted and not in covenant upon the sealed con- at the time, in order to afford the party tract between the parties. To this the de- propounding the question an opportunity to fendant filed general issue pleas, and the reframe it in such form that it would not be case came up for trial before a jury. The open to this objection. The rule is a most record presents 18 bills of exception, of which salutary and wise one if any regard is to the last is to the action of the court upon be had for the rules of evidence, and the the prayers, and the others to various rul- mere question of convenience or expense to ings of the court upon the evidence.

a party litigant cannot be permitted to out[1] The bills of exception numbered, re- weigh the enforcement of the general rule. spectively, 1, 2, 3, 8, 9, 10, 11, 13, 14, 15, The action of the lower court in this regard and 16, may all be grouped together. In was therefore entirely correct. each instance they are founded upon rulings The fifth exception is hased upon the supby the trial court on objections to the testi- posed leading character of a question promony given by one or another of the witness-pounded by the trial court to a witness unes from books or memoranda, or motions to der examination, and no error is perceived strike out such evidence, when such books in the ruling of the court with regard to this or memoranda were not shown to have been exception. books of original entry, or to have been made [3] The sixth and seventh exceptions were under the direction or supervision of the taken from the action of the court in suswitness who was testifying, but, on the taining an objection to a question asked of contrary, to have been made by clerks who the witness, Tatham, as to the difference bewere not shown to be either dead or unob- tween crude stone and powdered stone, and tainable. With regard to testimony of this to the admission in evidence of a letter recharacter, the rule has been repeatedly laid lating to the payments which had been made down by this court that such evidence is not by the defendant for certain of the goods admissible, and that its admission constitutes shipped upon his order. In both instances

Green v. Caulk, 16 Md. 556; the evidence offered was immaterial to any Thomas v. Price, 30 Md. 483; Bullock v. issue presented in the case; and while the Hunter, 44 Md. 416; Heiskell v. Rollins, 82 practice of admitting immaterial evidence is Md. 14, 33 Atl. 263, 51 Am. St. Rep. 455; unfortunate, since it tends to confuse the Richardson V. Anderson, 109 Md. 641, 72 minds of the jury as to the real issues, it is Atl. 485, 25 L. R. A. (N. S.) 393; Hoogewerff not apparent that any injury resulted from v. Flack, 101 Md. 382, 61 Atl. 184. The brief the rulings of the court upon which these with regard to the first three bills of excep- exceptions were based, and considerable latition of the appellee contains the statement tude must always be allowed to the discrethat, after having been admitted, the lower tion of a trial court as to the materiality of court consequently struck out the objection- the evidence sought to be elicited. able evidence, but the record does not clearly The twelfth and seventeenth exceptions bear out this statement, and, even if such both relate to the same aspect of the case, were the fact, the evidence admitted and since they deal with the effect produced by which formed the ground of the other excep- the failure of the plaintiff to make shipments tions named was improperly before the jury. of certain of the goods ordered by the de

[2] The fourth exception raises a question fendant. It seems to have been the theory with regard to which there is no exact ad- of the defendant that from the amount claimjudication in this state. The evidence of ed to be due by him to the plaintiff he was Charles A. Williams was being taken in Vir- entitled to recoup for losses sustained by him ginia under the provisions of section 16 of as the result of the nonshipment by the article 35 of the Code of Public General plaintiff of goods which he had ordered. Laws. The plaintiff was represented at the He was relying upon his contract made with taking of this evidence, but the defendant the company. From his point of view that was not, and on the reading of the deposition contract had been broken by the failure of the fifteenth question was objected to upon the company to make its deliveries upon his the ground that it was leading, though no orders as therein provided, and that as the such objection appears to have been made result of this violation of the contract he or noted at the time when the testimony was was entitled as against any moneys due by taken. On behalf of the defendant, it is him to the stone company for goods delivered urged that he was entitled to the hearing to offset the damages suffered by him as the to object to the question on the ground of result of such failure. its leading character, and that it was his [4] No claim of set-off appears to have first opportunity to object because of the been filed, nor could one have been properly expense to which the defendant would be filed in the condition in which the case came subjected if compelled to be represented by to trial; but, under the general issue plea, counsel at the taking of foreign depositions. the defendant was undoubtedly entitled to With this contention this court cannot agree. give evidence tending to show injury suffered It has long been the recognized rule in this upon which to found a claim of recoupment




jury, and the effect of the ruling of the of said soapstone to be shipped as wanted court in excluding this evidence was to deny during the next succeeding twelve months, to the defendant the opportunity to place and that the plaintiff's assignor had accepted before the jury the evidence upon which said order and agreed to furnish the said he must rely for this claim. This was clear- soapstone, and if the jury shall further find ly reversible error. Poe on Pleading, § 616; that the plaintiff's assignor failed or refused Abbott v. Gatch, 13 Md. 315, 71 Am. Dec. to perform its agreement in the premises to 635; Warfield v. Booth, 33 Md. 63.

the loss and damage of the defendant, that At the conclusion of the evidence the plain- then the defendant is entitled to offset or tiff offered two, and the defendant four, recoup against the plaintiff's claim such sum, prayers, of which the trial court granted if any, as the jury may find the defendant both prayers of the plaintiff, modified the lost by reason of such failure to perform first prayer of the defendant, and granted it by the plaintiff's assignor." in a modified form, and refused the defend [7] This was modified by the court by the ant's second, third, and fourth prayers.

addition of the words, "provided, however, [5] We do not perceive any error upon the that the jury must also find that the defendpart of the trial court in its ruling upon the ant was not in fault under said contract.” last three prayers of the defendant, which This addition to the prayer was unfortunate, sought to take the case from the jury upon because it submitted to the jury, not only the ground of failure of evidence, for there to find what constituted the contract, but was undoubtedly some evidence properly be- what the proper interpretation of that confore them upon the points in those prayers tract was, and the interpretation of a conreferred to; and where there is any evi-tract is always a matter of law to be ruled dence, no matter how slight, the court wil upon by the court. never sanction the withdrawal of the case [8] It also submitted to the jury the findfrom the jury.

ing of whether or not there had been a [6] To the plaintiff's first prayer the de- breach of the contract when by the very nafendant does not seem to make any serious ture of the defendant's case the breach was objection; and the second prayer of the admitted since the defense was the right to plaintiff instructed the jury that under “the recoup, and without a breach of the contract undisputed evidence in this case the goods there could be no claim for recoupment. purchased by the defendant from the plain [9] The prayer in the form in which granttiff were to be delivered f. o. b. at Marriotts-ed, therefore, was calculated to confuse and ville, Md., and that under the law the de- mislead the jury, while it submitted to them fendant was required to accept or reject all questions for their determination which it goods purchased by him from the plaintiff was proper should have been passed upon by at that place." This has been expressly the court. Roberts v. Bonaparte, 73 Md. 191, stated to be the law of this state as late as 20 Atl. 918, 10 L. R. A. 689. the case of Lawder v. Mackie Grocery Co.,

For the reasons indicated, the judgment 97 Md. 1, 54 Atl. 634, 62 L. R. A. 795, and below will be reversed, and the cause reAm. Syrup Co. v. Roberts, 112 Md. 18, 76 manded for a new trial, costs to be paid by Atl. 589, and no sufficient reason appears the appellee. why a departure should be made from the Judgment reversed and new trial awarded. rule there laid down.

Costs to appellant. The defendant's first prayer was as follows: "If the jury find from the evidence that the plaintiff's claim is for the purchase

(116 Md. 140) price of certain lots of powdered and un

WILMER v. EPSTEIN et al. ground refuse soapstone bought by the de (Court of Appeals of Maryland. June 23, fendant from the plaintiff's assignor and de

1911.) livered by the plaintiff's assignor to the de- 1. JUDGMENT ($ 17*) — JUDGMENT IN PER

SONAM-JURISDICTION OF PERSON. fendant, and if the jury shall further find

Jurisdiction of defendant's person must be that the said stone was purchased by the de- acquired by personal service of process or by his fendant under and by virtue of the terms of voluntary appearance, before a valid judgment a certain written sealed agreement between in personam can be rendered against him. the defendant and the plaintiff's assignor Cent. Dig. $$ 25-33; Dec. Dig. $ 17.*]

[Ed. Note.-For other cases, see Judgment, dated April 14, 1906, as modified by a sub

2. GARNISIIMENT (8 95*)-PROCESS-SERVICEsequent agreement fixing the price of un

JURISDICTION OF PERSON. ground refuse soapstone, and adopting with Code Pub. Gen. Laws 1904, art. 75, $ 166, reference thereto the other terms of said permits constructive or substituted service only sealed agreement of April 14, 1906, and if threats, etc., or the person to be served is within

where direct personal service is prevented by the jury shall further find that the defend- a fortified place. Article 9, SS 11, 29, require ant in pursuance of said sealed agreement the writ in garnishment proceedings to contain as modified notified the plaintiff's assignor a clause, commanding the officer executing it to by letter dated June 21, 1906, that he had the chattels attached are, to appear on the re

make known to each person, in whose hands booked contracts to the amount of 2,865 tons I turn to show cause why such chattels shall not


*For other cases see same topic and section NUMBER in Dec. Dig. & Am. Dig. Key No. Series & Rep'r Indexes

be condemned and execution had. Held, that copartners, trading as Baltimore Bargain the court had no power to render judgment of House, Jacob Epstein, proprietor; that a condemnation against a garnishee, where the only. service was upon an agent or employé of certain John O'Grady was, in the year 1910, the firm to be garnished.

and still remains, in their employ, at a sal[Ed. Yote.- For other cases, see Garnishment, ary of $13 per week, as packer in their milCent. Dig. $$ 181-188; Dec. Dig. $ 95.*]

linery department; that his wages were al. 3. JUDGMENT ($ 16*)--JURISDICTION OF PER- ways paid him weekly and never accumulatSON-EFFECT OF ABSENCE.

A judgment in personam is wholly void, if ed, and they at no time owed him for more no. jurisdiction of defendant's person is 'ac- than one week's services; that on or about quired.

August 2, 1910, they received a letter from [Ed. Note.- For other cases, see Judgment, the defendant, in which he claimed that on Cent. Dig. $8 22, 24; Dec. Dig. & 16.*]

February 17, 1910, a judgment of condemna4. JUDGMENT (8 419*)-EQUITABLE RELIEF-tion was rendered in his favor against the WANT OF JURISDICTION-WANT OF SERVICE. complainants as garnishees of O'Grady for

Equity will restrain the enforcement of a personal judgment, void for want of jurisdiction the sum of $58.39, with interest and costs, of defendant's person because of want of per- by a designated justice of the peace of Balsonal service, even though he knew that the ac- timore city; that this was the first intimation was pending against him, so that, where a tion or notice they had of the existence of garnishee was not personally served, so as to give jurisdiction, and the attaching creditor the judgment; that they were never sumwas not entitled to a judgment against him, even moned in the case in which it was rendered, if he had been served, because he did not hold and the attachment was never laid in their any of the debtor's funds which were not exempt, of which the attaching creditor was in- hands; and that the judgment was not reformed by the garnishee's agent, equity will en- corded and notice given them of its entry unjoin the enforcement of an ex parte judgment til the time for appeal had expired. The bill against the garnishee.

[Ed. Note. For other cases, see Judgment, asserts that the judgment of condemnation Cent. Dig. $ 794; Dec. Dig. $ 419.*]

is consequently roid. A certified copy of the 5. EXEMPTIONS (8 48*) GARNISHMENT

justice's record was exhibited with the bill. AMOUNT DUE DEBTOR.

It shows that the attachment in question was Under Code Pub. Gen. Laws 1904, art. 9, issued on a judgment against O'Grady for § 33, providing that wages or hire not actually $57.81, and was docketed in the name of the due shall not be attachable, and that $100 of such wages shall always be exempt from at- appellant against "Baltimore Bargain Ilouse, tachment by any process whatever, an attach- Garnishee of John O'Grady"; that the writ ing creditor was not entitled to a judgment was returned “served,” as was also a subagainst the garnishee for any amount, where the only wages due from the garnishee to the pana duces tecum, issued by order of the debtor was $13.

judgment plaintiff; that the garnishee fail[Ed. Note. For other cases, see Exemptions, ed to appear on the day set for the hearing Cent. Dig. $8 64–72; Dec. Dig. $ 48.*]

of the case, and there was a trial ex parte, 6. JUDGMENT ($ 456*)--EQUITABLE RELIEF, resulting in a judgment of condemnation for PROCEEDINGS-TIME TO SUE.

the amount already stated. The writ was diA letter from the attaching creditor, claiming under a void judgment of condemnation, to rected to a constable of Baltimore city. It the garnishee, referring to the judgment against contained the usual scire facias clause, comthe garnishee, and stating that the time for manding the officer to "make known' to the appeal had expired, and requesting payment without delay, showed that the attaching cred garnishee to appear on the return of the itor contemplated enforcing the judgment, so as writ and show cause why the attached credto entitle the garnishee to sue to restrain its its should not be condemned and execution enforcement without waiting until his property therefor issued. The constable's return is as was levied upon. [Ed. Note. For other cases, see Judgment, ed, laid in the hands of Baltimore Bargain

follows: "By virtue of this writ to me directDec. Dig. $ 450.*]

House, by service on George R. Nelson, Supt., Appeal from Circuit Court of Baltimore this 27th day of Jany, 1910, at 11 o'clock a. City; Alfred S. Niles, Judge.

m., and made known this writ to said firm Suit by Jacob Epstein and others against as garnishee as I am commanded, and served Edwin J. Wilmer. From a decree for com- notice of day, date and hour of hearing thereplainants, defendant appeals. Affirmed, and of on the said garnishee who refused to recause remanded.

ceive the same." This was supplemented by Argued before BOYD, C. J., and BRIS- the following indorsement: “I hereby certify COE, PEARCE, BURKE, PATTISON, UR- that on January 27, 1910, I laid the within NER, and STOCKBRIDGE, JJ.

writ in the hands of the Baltimore Bargain David Ash, for appellant. Martin Leh- House by service on George R. Neilson, Supt., mayer, for appellees.

at 11 o'clock a. m., and that the said Xeil

son declined and refused to receive the noURNER, J. The object of this suit is to re- tice of the attachment on the ground solely strain the enforcement of a judgment alleged that the judgment was not attachable." to be void for want of jurisdiction. It is The bill of complaint makes allegations to stated in the bill of complaint filed by the the effect that the defendant concealed from appellees in the court below that they are the complainants the fact that the judgment




of condemnation had been obtained until it, behalf, or he is within a fortified place was too late for an appeal; that the com- into which the officer cannot enter without plainants have never had any moneys, prop- force or personal risk, that constructive or erty, or credits in their hands belonging to substituted service is permitted. Code, art. the original judgment debtor which were li- 75, § 166. It is specially provided by secable to attachment; that by reason of the act tions 11 and 29 of article 9 of the Code of the defendant in concealing the existence that the writ of attachment, in a case like of the judgment the complainants are with the present, "shall contain a clause commandout remedy at law, as the time within which ing the sheriff or other officer, at the time of they could have taken an appeal has expired; executing the said attachment to make known that they have not been guilty of laches or to each person in wbose hands or possession negligence in the premises; and that it would the lands, tenements, goods, chattels and be inequitable to allow the judgment of con- credits so attached are, if to him it shall demnation to be enforced. There were prayers seem meet, to be and appear on the return for a cancellation of the judgment, for an of such attachment before the court out of injunction against its enforcement, and for which it issued, to show cause why such general relief. The defendant demurred to

The defendant demurred to lands, tenements, goods, chattels or credits so the bill, and this appeal is from an order of attached should not be condemned and exthe court below, overruling the demurrer and ecution thereof had and made as in other requiring an answer to be filed.

cases of recoveries and judgments given in It is contended by the appellant that the courts of record.” In view of these provibill' is deficient in not alleging want of knowl- sions, as well as upon the general rule of law edge by the complainants of the pendency of we have stated, we can have no doubt that the attachment. The theory of this objection the service of process shown upon the face of is that, even though there may have been no the proceeding in this case was ineffective to service of process upon the firm sought to be give the justice of the peace jurisdiction to affected by the garnishment, yet, if its mem- render the judgment here sought to be rebers had actual knowledge of the suit, their strained. only remedy was to contest in that action, [3] The question to be determined, when and on appeal, the jurisdiction of the magis- reduced to its simplest form, is whether a trate to render judgment of condemnation.court of equity must refrain from interferIt is urged, therefore, that, inasmuch as the ing with the enforcement of a personal bill denies that the writ was served upon judgment rendered without jurisdiction of the complainants, but does not deny that they the person, merely because the ostensible knew of the attachment in time to make a defendant does not aver and prove that he did defense in that proceeding, the demurrer not know of the pendency of the action. It should have been sustained.

is a firmly established principle that a judg[1, 2] It is elementary law that, before a ment in personam, where no jurisdiction valid judgment in personam can be rendered, of the person is obtained, is wholly void. jurisdiction of the person of the defendant Hanley v. Donoghue, 59 Md. 243, 43 Am. must be acquired, either by personal service Rep. 554; Horner v. Popplein, 112 Md. 59), of process upon him or by his voluntary ap- 77 Atl. 252; Clark v. Bryan, 16 Md. 171; pearance. 2 Poe on Pleading & Practice (3d Clark v. Wells, 203 U. S. 164, 27 Sup. Ct. Ed.) § 62; 23 Cyc. 684. In this case the de- 43, 51 L. Ed. 138. In Hanley v. Donoghue, murrer admits in effect that the only service of the attachment and scire facias was upon supra, it is said: “But it is essential to the an individual who was not a member of the validity of a judgment in personam that firm intended to be made garnishees. We do the court should have jurisdiction over the not understand it to be contended that this parties, and, if rendered without such juwas sufficient to give the court jurisdiction risdiction, it is a mere nullity. Such a judgto render the judgment in question, and it is ment is not merely erroneous because of clear upon principle and authority that such some irregularity in the mode of proceeding, a contention, if made, could not be sustained. or error on the part of the court in the appliSmith Premier Co. v. Westcott, 112 Ma. 146, cation of the law to the particular case, 75 Atl. 1052; Kittrell v. Perry Lumber Co., and for which the party aggrieved must 107 Tenn. 148, 64 S. W. 48; Faul v. Beucus, seek a remedy by appeal or writ of error, 124 Mich. 25, 82 N. W. 659. In 2 Poe on | but, being a judgment rendered without Pleading & Practice (3d Ed.) 62, it is said: jurisdiction, it is absolutely void, and may “The service of the summons must be a per- be assailed at all times and in all proceedsonal one, and the officer charged with the ings by which it is sought to be enforced.” duty of serving it is not authorized to leave [4] in harmony with this doctrine, it is a copy of it at the office, residence, or place well settled that the enforcement of judgof business of the defendant and return ments thus invalid may be restrained in him as summoned, nor to serve it upon equity. Horner v. Popplein, 112 Md. 591, his wife, agent, or partner." Under our 77 Atl. 252; Miller v. M. & St. L. R. Co., statute, it is only where direct service up- 119 Iowa, 41, 93 N. W. 76; Truitt v. Daron the person sued is prevented within the nell, 65 N. J. Eq. 221, 55 Atl. 692; St. Louis jurisdiction, by "threats, violence, intimida- & S. F. Ry. Co. v. English (Tex. Civ. App.) tion, or superior force” interposed on his 109 S. W. 424; Kochman V. O'Neill, 202

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