Petition — Overmyer v. Lawyers Title Insurance

Supreme Court brief1977

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No. 26-8748

DANIEL H. OVERMYER, a/k/a D. H. OVERMYER

AND/oR DAN H. OVERMYER,

Petitioner,

LAWYERS TITLE INSURANCE CORPORATION,

Respondent.

PETITION FOR A WRIT OF CERTIORARI TO

THE COURT OF APPEALS OF THE

STATE OF MARYLAND

CONSTABLE, ALEXANDER &

DANEKER,

Davw C. DANEKER,

1000 Maryland Trust Bldg.,

Baltimore, Maryland 21202,

539-3474,

December, 1976 Counsel for Petitioner.

"Tir Dally Record Co. Baltimore, Ma 21202 _s

PAGE

Ee OR ACSEARLE 2

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ITS FID. crcersscrensnsonccsensncssnscsctisnsesanenses 2

CONSTITUTIONAL TROVISIONS, STATUTES AND

RETO HD OD OS 3

STATEMENT OF THE CASE ....0cccccccscccccccccccccccccccosssees 5

REASONS FOR GRANTING THE WRIT ...........c0000ee000 7

ETD eee AO Fee OT TD 12

ApPENDIX A (Opinion of Court of Special

IIIT si cesaticeucsiteitaaiceitiininiamiidididiiatiigehdanidhiiespiabaibdniasans la

APPENDIX B (Order of Court of Appeals, denying

AEST © TER CE NAD PRE NID 15a

ApPENDIxX C (Opinion of Proctor, J., Circuit

Re, Bas GD ciircccinictnentctinsactnicmeniienes l6a

TABLE OF CITATIONS

Cases

Aris Gloves v. U.S., 188 F. Supp. 50 ................... ll

Armstrong v. Manzo, 280 U.S. 545 .............cccceee 10, 12

Bell v. Buragon, 402 U.S. 536 ...........ccccccccccccscssoceees 8

Boddie v. Conn., 401 U.S. 371 ..........ccccccscsccsscsesees 8

Covey v. Town of Somers, 351 U.S. 141 ............. 10

Fuentes v. Shevin, 407 U.S. 67 oo...cccccccccccccceceeeeees 8,12

Grannis v. Ordean, 234 U.S. 385 ...........ccccceeeeeeees 10

Goldberg v. Kelly, 397 U.S. 254 woo... ccccccccccceeeseeeee 8

IE Oi, By Ge I FE sabitnteitnsentnsirorevcocsineticeninens 8

Milliken v. Meyer, 311 U.S. 457.000... eee 10

Mitchell v. W.T. Grant, Co., 416 U.S. 600 .......... 8

PAGE

Mullane v. Cen’t Hanover Bank & Trust Co., 339

TI: SU clase hieeepcslonanensiiiiadiainnanatetl 10, 11

North Georgia Finishing Inc. v. Di-Chem., Inc.

- f 8

Ownbey v. Morgan, 256 U.S. 94 ....ccccccceceeseeeeenees 8

Palmer v. Columbia Gas of Ohio, Inc. 479 F.2d

I a easseminietelidpudeiaeianeietieiniaheinsanaeniuaiiets 11

Tucker v. Burton, 319 F. Supp. 567 ..........ccceeeeee 8

U.S. v. San Juan Lumber, 313 F. Supp. 703 ..... 11

—-

IN THE

Supreme Court of the United States

OCTOBER TERM, 1976

No.

DANIEL H. OVERMYER, a/k/a D. H. OVERMYER

AND/OR DAN H. OVERMYER,

Petitioner,

Vv.

LAWYERS TITLE INSURANCE CORPORATION,

Respondent.

PETITION FOR A WRIT OF CERTIORARI TO

THE COURT OF APPEALS OF THE

STATE OF MARYLAND

The Petitioner, DANIEL H. OVERMYER, prays that

a Writ of Certiorari issue to review the opinion and

judgment of the Court of Special Appeals of the State of

Maryland rendered in these proceedings on June 29,

1976.

Petitioner’s, Petition for a Writ of Certiorari in the

Court of Appeals of Maryland was denied on September

24, 1976.

OPINIONS BELOW

The opinion of the Court of Special Appeals of

Maryland, which is reported in 32 Md. App. 177,

appears at Appendix A, infra, pages la to 14a. The

order of the Court of Appeals of Maryland denying the

Petition of Writ of Certiorari, which was issued without

opinion, appears at Appendix B, infra, page 15a. The

oral opinion of Judge Proctor of the Circuit Court for

Baltimore County, which is unreported, appears at

Appendix C, infra, pages 16a to 18a.

JURISDICTION

The order of the Court of Appeals of Maryland,

denying Certiorari, was entered on September 24, 1976.

This Petition for Certiorari was filed less than ninety

(90) days from the date aforesaid. The jurisdiction of

this Court is invoked under 28 USC §1257 (3).

QUESTIONS PRESENTED

Lawyers Title Insurance Company filed a suit

against Petitioner which suit contained an attachment

on original process against an interest in real property

which was owned by the Petitioner in Maryland. The

questions thereby arising are:

1. Whether a pre-hearing attachment of an interest

in real property belonging to a Defendant who is

amenable to personal jurisdiction constitutes a depriva-

tion of property without due process of law in violation

of the Fourteenth Amendment.

2. Whether a notice to a Defendant of the amount of

time within which he must respond to a suit in order to

prevent a judgment from being entered against him is

en era

deficient if it is not understandable by the ordinary

layman receiving it.

3. Whether the provisions of subtitle G of the

Maryland Rules of Procedure which do not require

notice of an opportunity to oppose a Motion for

Judgment of Condemnation Nisi deny due process to

the Defendant.

CONSTITUTIONAL PROVISIONS, STATUTORY

PROVISIONS AND RULES INVOLVED

Constitution of the United States, Amendment

XIV, §1:

_. nor shall any state deprive any person of

life, liberty, or property without due process of law

Annotated Code of Maryland, Courts and Judicial

Proceedings Article Section 6-103:

a) Condition — If jurisdiction over a person is

based solely upon this section he may be sued only

on a cause of action arising from any act

enumerated in this section.

b) In General — The Court may exercise

personal jurisdiction over a person, who directly or

by an agent:

* * * * * *

5) has an interest in, uses, or possesses real

property in the State;

* * * * * *

Maryland Rules of Procedure, Rule 648. Inquisi-

tion — After Interlocutory or Default Judg-

ment. Law

Where an interlocutory judgment or judgment b

default has been entered, the court shall on sestion

of the plaintiff, make an order in the nature of a

Writ of Inquiry, to charge the jury to inquire of the

damages and costs sustained by the plaintiff,

which inquiry shall be made and the evidence

given in open court as in other jury trials; and after

the jury shall have considered thereof, they shall

return their inquisition and the court shall order

such judgment to be extended in accordance with

the terms of such finding of the jury; or, on motion

by the Plaintiff, the court where such judgment is,

shall without the jury, inquire of the damages and

costs sustained by the plaintiff in such action, and

shall assess the damages and costs and order the

judgment to be extended for the amount so found to

be due, and interest (Art. 75 §94).

Rule G48 — Writ of Summons

In addition to the Writ of Attachment, the clerk

shall issue a Writ of Summens to the defendant.

Where the defendant cannot be served with the

Writ of Summons, and has not voluntarily ap-

peared, the plaintiff shall make reasonable efforts

to ascertain the actual whereabouts of the defend-

ant and to bring to the knowledge of the defendant

that an Attachment on Original Process is pending

against him. A Judgment of Condemnation Nisi

shall not be entered until the plaintiff shall satisfy

the court by affidavit that he has notified the

defendant or has made a bona fide effort to locate

and notify him. (Courts Article §6-202 (9); amended

May 7, 1974).

Rule G51 — Motion to Quash

a) Procedure — A defendant or garnishee may

file a motion within the time required by Rule 307

(Time for Defendant’s Initial Pleading) praying

that the Writ be quashed and set aside, and

thereupon the court may order the sheriff to

produce the Writ and the proceedings thereunder in

court. (Amended May 7, 1974).

Rule G55 — Judgment of Condemnation Absolute

a) Against Attached Property — After the

expiration of fifteen (15) days from the entry of a

Judgment of Condemnation Nisi against the

property attached, the plaintiff may, pursuant to

ee nr

Rule 648 (Inquisition — After Interlocutory or

Default Juugment), prove his claim against the

defendant; thereupon, a Judgment of Condemna-

tion Absolute shall be entered against such prop-

erty.

STATEMENT OF THE CASE

On May 7, 1971, while D. H. Overmyer Co., Inc. was

the owner of a certain warehouse located in Baltimore

County, faryland, a final decree was entered by the

Circuit Court for Baltimore County in favor of B & E

Sales against said D. H. Overmyer Co., Inc., awarding

B & E money damages in the amount of $7,749.99, plus

court costs, plus the sum of $1,400.00 per month to be

paid each month from May, 1971 through February,

1976. Some payments were made in accordance with the

terms of this judgment, but a delinquency developed.

In 1972, D. H. Overmyer Co., Inc. determined to sell

the Baltimore County warehouse to a group of individu-

als, one of whom was Petitioner Daniel H. Overmyer,

and the Company contacted Lawyers Title Insurance

Corporation (“Respondent”) to prepare the necessary

title work. Because of the unsatisfied judgment, Daniel

H. Overmyer (“Petitioner”) was required to indemnify

Lawyers Title against specified losses as part of the

settlement transaction for the sale of the warehouse.

Commencing in 1974, Respondent was contacted by

attorneys for B & E who demanded payment of the

judgment arrearages. Respondent verified the amount

outstanding on the judgment and after notice to

Petitioner, Respondent paid B & E the sum of

$52,752.00 in order to satisfy and extinguish the rights

of B & E under the decree.

In August, 1974, Respondent filed an action at law in

the Circuit Court for Baltimore County in which it

sought to collect the $52,752.00 it had paid, plus

attorneys’ fees, from Petitioner, on the basis of his

indemnification agreement. Simultaneously, an attach-

ment on original process was filed against the

interest in the Baltimore County warehouse which

Petitioner had purchased from D. H. Overmyer Co., Inc.

Personal service on Petitioner was never achieved.

On December 9, 1974, Respondent’s counsel succeeded

in making the first contact with Petitioner, when

Petitioner returned the telephone call which Respond-

ent’s attorney had made to Petitioner’s residence.

Following the telephone call, Respondent’s counsel

mailed a copy of the suit papers to Petitioner by regular

mail. The suit papers contained a “Notice of Suit”

which mistakenly or misleadingly advised Petitioner

that he had sixty (60) days in which to respond to the

Declaration in order to prevent the entry of Judgment

by Default.

On or about December 27, 1974, Respondent, without

any further notice to Petitioner, filed and mailed a copy

of a Motion for Judgment of Condemnation Nisi to

Petitioner. The Judgment of Condemnation Nisi was

granted on the same day. When Petitioner subsequently

appeared, he moved to strike the Judgment of Condem-

nation Nisi. Two of the grounds for Petitioner’s Motion

were as follows:

1. The entry of the Judgment of Condemnation

Nisi only 18 days after the first notice to Defendant

(by telephone) of the attachment was inequitable

and improper and constituted surprise, irregularity

and mistake, depriving Defendant of his opportun-

ity to raise a meritorious defense and have the Writ

of Attachment quashed.

2. The entry of the judgment of condemnation

nisi onlv eighteen (18) davs after mailing to

Defendant suit papers advising him that he had

sixty (60) days within which to respond was

inequitable and improper and constituted surprise,

irregularity and mistake, and deprived Defendant

of his opportunity to raise a meritorious defense

and have the Writ of Attachmen: quashed.

The Honorable John E. Raine, Jr., of the Circuit

Court for Baltimore County, after a hearing on

Petitioner's Motion, refused to strike out the judgment,

but entered an Order that no Judgment of Condemna-

tion Absolute would be entered until after a hearing on

the merits of the case.

After a hearing on the merits which resulted in a

judgment in favor of the Respondent, Petitioner

appealed te the Court of Special Appeals of Maryland,

raising each of the issues which are presented to this

Court. The Court of Special Appeals concluded that

“the Maryland Rules relative to attachment on original

process as applied in the case at bar are constitutional.”

(Appx. A, p. 8a). In particular, the Court held that

Petitioner was not deprived of due process by the

attachment on original process because Petitioner was

not subjected to any loss of possession of the property.

(Appx. A, p. 8a). The Court also found no merit to

Petitioner’s contention that the “Notice of Suit” which

advised Petitioner that he had sixty (60) days to

respond to the Declaration was misleading.

Petitioner filed a Petition for a Writ of Certiorari in

the Court of Appeals of Maryland. After the Maryland

Court of Appeals declined review, Petitioner filed this

Petition.

REASONS FOR GRANTING THE WRIT

1. The decision below directly conflicts with the due

process principles enunciated by this Court.

(a) Due process requires that attachment be

preceded by notice and the opportunity for a hearing.

The root requirement of the due process clause is “that

an individual be given the opportunity for a hearing

before he is deprived of any significant property

interest, except for extraordinary situations where some

valid governmental interest is at stake that justifies

postponing the hearing until after the event.” Laing v.

United States, 423 U.S. 161, 96 S. Ct. 473, 486 (1976)

(Brennan, J., concurring); Boddie v. Connecticut, 401

U.S. 371, 378-379, 91 S. Ct. 780, 786 (1971); Fuentes v.

Shevin, 407 U.S. 67, 92 S. Ct. 1983, 1994 (1972). In the

instant case, Petitioner’s ,,th interest in a warehouse

located in Baltimore County was attached prior to any

notice or any judicial hearing. It is submitted that this

attachment, which deprived Petitioner of the right to

sell, transfer, or otherwise dispose of his property,

constituted a judicial deprivation of a significant

property interest. See Bell v. Burson, 402 U.S. 535, 91S.

Ct. 1586 (1971); Goldberg v. Kelly, 397 U.S. 254, 90S. Ct.

1011 (1970). It is further submitted that the instant case

does not present an “extraordinary situation” in which

summary proceedings will meet the requirements of due

process. See Ownbey v. Morgan, 256 U.S. 94, 41 S. Ct.

433 (1921). Ownbey, which concerned attachment of

property of a non-resident debtor by a resident creditor,

premised its approval of pre-hearing attachment on the

need for a state to acquire jurisdiction over non-resident

debtors. The instant case must be distinguished from

Ownbey because your Petitioner was amenable to

personal jurisdiction in Maryland under Maryland’s

“long-arm”’ statute. Annotated Code of Maryland, Court

and Judicial Proceedings Article, Section 6-103. There-

fore, there was no need to attach property to acquire

jurisdiction. Compare Tucker v. Burton, 319 F. Supp.

567, 577-578 (D.D.C. 1970) (Wright, J. dissenting).

In those extraordinary cases in which due process

does not require notice and the opportunity for a

hearing prior to deprivation of a property interest by

governmental action, it has been held that, at a

minimum, there must be other safeguards against a

wrongful taking. Mitchell v. W.T. Grant Co., 416 US.

600, 94 S. Ct. 1895 (1974); North Georgia Finishing, Inc.

v. Di-Chem, Inc. 419 U.S. 601, 95 S. Ct. 719 (1975). It is

submitted that the only adequate safeguard in such

cases is a prompt, meaningful opportunity to release the

lien. The procedure provided by the Maryland Rules is

for the Defendant to file a Motion to Quash, as provided

by Rule G. 51. Assuming arguendo that the prcvisions

of the due process clause do not require a notice and an

opportunity for a hearing prior to an attachment, then,

at a minimum, due process requires meaningful notice

of an opportunity to quash the attachment immediately

thereafter and before the attached property is con-

demned.

In the instant case, Petitioner did not receive any

meaningful notice of his opportunity to quash the

attachment until a Judgment of Condemnation Nisi

had already been entered. Petitioner was notified by

mail on December 10th or 11th, 1974, that an Attach-

ment on Original Process was pending against his

interest in the Baltimore County warehouse. This notice

failed to advise him that he was already in default in

the attachment case and failed to advise him of the

amount of time available to him to respond in order to

prevent a Judgment of Condemnation from being

entered against the property. Instead, the notice

erroneously or misleadingly advised him that he had

sixty (60) days from the date of delivery of the

Declaration alleging the causes of action to answer in

order to prevent entry of a judgment by default. Yet a

Judgment of Condemnation Nisi was entered without

any further or prior notice of only eighteen (18) days

later.

The effect of the entry of the Judgment of Condemna-

tion Nisi was that Petitioner was deprived of an

opportunity to quash the attachment, and Petitioner’s

property was left subject to the attachment lien pending

the outcome of a trial on the merits. It is submitted that

the failure of the Maryland Rules to provide a

meaningful opportunity for Petitioner to set aside the

attachment at an early date renders the attachment

procedure unconstitutional.

(b) Due Process requires that notice be under-

standable to the ordinary layman receiving it.

An elementary and fundamental requirement of due

process is notice reasonable calculated under all the

circumstances, to appraise interested parties of the

pendency of the action and afford them an opportunity

to present their objections. Milliken v. Meyer, 311 U.S.

457, 61 S. Ct. 339 (1940); Grannis v. Ordean, 234 US.

385, 34 S. Ct. 779 (1913); Mullane v. Central Hanover

Bank & Trust Co. 339 U.S. 306, 70 S. Ct. 652 (1950);

Covey v. Town of Somers, 351 U.S. 141, 76 S. Ct. 724

(1956); Armstrong v. Manzo, 280 U.S. 545, 85 S. Ct. 1187

(1965). Notice is deficient if it fails reasonably to convey

the required information and to afford a reasonable

time for the Defendant to make his appearance. See

United States v. San Juan Lumber Co., 313 F. Supp. 703

(D. Colo. 1989).

In the instant case, it is submitted that the notice

was inadequate because it misled Petitioner as to the

amount of time available to him to prevent a default

judgment. The notice received by Petitioner stated:

“You are hereby notified that an Attachment on

Original Process proceeding, or law suit, has been

filed against you by Lawyers Title Insurance

Corporation, Plaintiff in the above-entitled proceed-

ings, in the Circuit Court for Baltimore County,

State of Maryland, to recover on the causes of

action therein stated and attached hereto, pursuant

to Rules G40-61, Maryland Rules of Procedure and

related laws. You must plead or answer the

Declaration, or law suit alleging the causes of

action, within sixty (60) days from the date of

delivery noted upon your Return Receipt to this

Notice, or else Judgment by Default may be entered

against you. This Notice and Service is made

pursuant to Rules G48, G5dl(a), 307(d)(8) and

107(a)(2) and (b), Maryland Rules of Procedure, and

pursuant to Article 75, Sections 78, 94-100, Anno-

tated Code of Maryland (1957 Ed., 1969 Rpl. Vol.),

and Courts and Judicial Proceedings, Article (1974

Vol.), Section 6-103, 6-301 and 6-304, annotated [sic]

Code of Maryland.”

The Court of Special Appeals of Maryland held that

the sixty (60) day provision in this notice applied only

to the short-note case, and not to the attachment case.

If such is the case, it is submitted that such a

distinction was certainly beyond the perception of the

ordinary layman. The ordinary individual reading this

notice, would reasonably conclude (as Petitioner did)

that he had sixty (60) days in which to respond to

prevent any entry of a default judgment. A notice is

only sufficient when it provides the ordinary layman

with clear, definite, and explicit, not ambiguous

information as to what should be done and the time

within which it should be done. Aris Gloves, Inc. v.

United States, 188 F. Supp. 50, 59 (Cust. Ct. 1960). See

also Palmer v. Columbia Gas of Ohio, Inc., 479 F.2d 153

(6th Cir. 1973) in which a gas company’s shut-off notice

was held to be deficient for purposes of due process

where it did not provide the customer with the

information he needed “to quickly and intelligently

take available steps to prevent the threatened termina-

tion of service.”

It is respectfully submitted that the notice of the

attachment in this case was a “mere gesture” and not

due process. Mullane, 339 U.S. 306, 315, 70 S. Ct. 652,

657.

the entry of a Judgment of Condemnation Nisi.

Under the Maryland Rules of Procedure, the entry of

a Judgment of Condemnation Nisi entitles the Plaintiff

to proceed according to Rules G55(a) and G48, by a

unilateral, inquisition-type hearing to establish the

Plaintiff's damages and costs. This hearing is not

prevented by a subsequent motion to set aside the

judgment.

It is submitted that the entry of a Judgment of

Condemnation Nisi is a significant judicial taking, and

that such an event must be preceded by timely and

meaningful notice to the Defendant. Yet the Maryland

Rules of Procedure permit the entry of such a judgment

on the same date that the motion therefor is mailed to

the Defendant, as was done in the instant case. It is

submitted that the entry of a Judgment of Condemna-

tion Nisi without timely and meaningful notice violates

due process. See Ar..strong v. Manzo, 280 U.S. 545, 85

S. Ct. 1187 (1965); Fuentes v. Shevin, 407 U.S. 67, 92 S.

Ct. 1983- (1972).

CONCLUSION

For these reasons, a writ of certiorari should issue to

review the judgment and opinion of the Maryland Court

of Special Appeals.

Respectfully submitted,

CONSTABLE, ALEXANDER &

DANEKER,

Davip C. DANEKER,

1000 Maryland Trust Bldg.,

Baltimore, Maryland 21202,

539-3474,

December, 1976 Counsel for Petitioner.

APPENDIX A

OPINION OF THE COURT OF SPECIAL APPEALS

DANIEL H. OVERMYER a/k/a D. H. OVERMYER

AND/OR

DAN H. OVERMYER v. LAWYERS

TITLE INSURANCE CORPORATION

{No. 1206, September Terra, 1975.)

Decided June 29, 1976.

Appeal from the Circuit Court for Baltimore County

(Proctor, J.).

Suit by Lawyers Title Insurance Company against Daniel

H. Overmyer a/k/a D. H. Overmyer and/or Dan H.

Overmyer alleging defendant's obligation on an express

indemnity agreement. From judgment in favor of plaintiff,

defendant appeals.

Judgment modified and as modified affirmed. Costs to be

paid by appellant.

The cause was argued before *Gitpert, Mencuine and

Moorz, JJ.

David C. Daneker and Paul W. Madden, with whom were

Constable, Alexander & Daneker on the brief, for appellant.

John J. Ghingher, Jr., and Deborah E. Hunt for appellee.

*Gusenrt, J., delivered the opinion of the Court.

In this appeal, Daniel H. Overmyer a/k/a D. H. Over-

myer and/or Dan H. Overmyer, seeks to reverse a judgment

of the Circuit Court for Baltimore County (Proctor, J.) in

which Lawyers Title Insurance Corporation was awarded

monetary damages against Overmyer in the amount of

*Reporter’s Note: Cilbert, J., appointed Chief Judge of the Court of

Special Appeals on June 8, 1976.

$59,752. The judgment was entered after a hearing on an

attachment on original process. Md. Rule G55. :

Overmyer poses a tetrad of questions to us, asserting that

an affirmative answer to any one cf them requires a reversal!

of the judgment.

Before we undertake to discuss the issues raised in this

case, it is necessary to set forth briefly the scenario giving

rise to the appeal.

B & E Sales Company obtained, in the Circuit Court for

Baltimore County, on May 7, 1971 (Jenifer, J.), a monetary

decree against D. H. Overmyer Co., Inc., because Overmyer,

Inc., breached, as landlord, a lease with B & E Sales. The

decree provided that Overmyer, Inc., was to pay B & E Sales

$7,749.99 and, in addition thereto, Overmyer, Inc., was

directed to pay B & E Sales “... $1,400.00 per month

beginning as of May 1, 1971, .. . and the balance to be paid

thereafter on the first day of each succeeding month

beginning June 2, 1971, and up to and including February 1,

1976.” ?

Apparently, Overmyer, Inc., decided to sell the Baltimore

County warehouse, the lease to which, we infer, brought

about the litigation with B & E Sales. The property was sold

to a group of individuals, which included among its number

Daniel H. Overmyer. Lawyers Title was engaged to insure

the title of the purchasers. The title company discovered the

unsatisfied judgment of B & E Sales against Overmyer, Inc.

Seemingly, after some preliminary discussion, the title

company agreed to issue a policy provided that Overmyer,

Inc., and Daniel Overmyer, individually, would indemnify

the title company against any loss it might incur if the B &

E Sales’ judgment was not paid pursuant to its terms.

——— + —-

1. We note that the judgment should have been entered in the following

form: “Judgment absolute in favor of the plaintiff, Lawyers Title Insurance

Corporation, against the defendant, Daniel H. Uvermyer, etc., for the sum

of $52,752, current money with interest from October 20, 1975, and an

attorney's fee of $7,000, and costs.” See Wolfe v. Madison Nat'l Bank, 30

Md. App. 525, 531-32, 352 A. 2d 914, 918 (1976).

2. The judgment was affirmed by the Court of Apgeels in an unreported,

per curiam opinion, D. H. Overmyer Co. v. B & E Sales Company, Inc., No.

181 (Md_, filed January 17, 1972).

In February, 1974, Lawyers Title was advised by a letter

from counsel for the property owners that the judgment was

in default and that the judgment creditor was threatening to

execute upon the judgment and seek a sheriff's sale of the

property. The title company satisfied the judgment creditor

by paying to it $52,752 and receiving from the creditor an

assignment of its judgment against Overmyer, Inc.

La‘vyers Title, on August 2], 1974, filed against the

appellant Overmyer a narr in assumpsit, together with a

motion for summary judgment, an affidavit in support of

the motion, various exhibits, an attachment on original

process, an affidavit in support of the attachment, and a

bond. The sheriff of Baltimore County was instructed to

attach and “leave where found” Overmyer’s undivided

one-tenth (1/10) interest in the property known as 7636

Canton Center Drive. Notice of the proceedings was sent to

Overmyer by certified mail, return receipt requested, but it

was twice returned, once marked “refused addressee not

home to receive” and the other time simply “unclaimed.”

When the second attempted service was unsuccessful,

counsel for the title company caused to be sent by ordinary

mail, addressed to what appears to be a home address in

New York State, and to a business address in New York

City, copies of the pleadings together with all allied papers.

On the same date, December 9, 1974, Perry Raabe, Esq., one

of the attorneys for the title company, in response to a

telephone cali to the Overmyer residence, received a

telephone call from Overmyer. In the course of the ensuing

conversation, Overmyer was advised of the pending

litigation. Eighteen days later, Lawyers Title moved for the

entry of a judgment nisi and it was entered on the same day,

December 27, 1974.

Overmyer, on January 10, 1975, filed a motion to strike

the judgment nisi assigning as reasons that: (1) there had

been no bona fide effort to serve him; (2) the entry of the

judgment nisi eighteen (18) days after the telephone notice

was “... inequitable and improper and constituted surprise,

irregularity and mistake, ...” depriving Overmyer of his

opportunity to raise a meritorious defense; (3) the “notice” to

Overmyer of the time to plead recited that he had 60 days in

which to answer and that a shortening of that period was a

surprise, mistake or irregularity; (4) that he had a

meritorious defense which he was denied by reason of the

judgment nist; and (5) that the total amount of the judgment

should have been for an amount less than $10,000. An order

directing Lawyers Title to show cause why the judgment nist

should not be stricken was issued. Before that reply was

forthcoming, Overmyer filed a paper writing titled

“Answer” in which he asserted as a “first defense” the

general issue plea in assumpsit. He also embodied in the

“Answer” a first, second, and third affirmative defense

going to the merits of the title company’s claim. Overmyer

further answered the motion for summary judgment.

Lawyers Title responded to the show cause order on

February 14, 1975, and the case was set for hearing. Notice

of the hearing date was mailed to counsel “... around

September 15th or 20th... .” Three days before the hearing,

that is, on October 17, 1975, Overmyer requested a

“continuance or postponement” on the ground that he had

another case scheduled for trial in Toledo, Ohio, on the same

day, October 20, 1975. Judge H. Kemp MacDaniel refused to

postpone the case, and the matter reached Judge Proctor on

October 20, 1975. Overmyer again requested a post-

ponement. Judge Proctor denied it. After hearing brief

testimony, a judgment nisi was entered in favor of the title

company on the debt (short note]. Following the overruling

of a motion for a new trial, judgment absolute was recorded

on November 3, 1975.

Overmyer argues that Judge Proctor erred in four

respects in entering the judgment. We shall consider each

con‘ention as posed.

“The Judgment of Condemnation Absolute was

improperly entered because it was founded on a

Judgment of Condemnation Nisi entered without

proper prior notice to the Defendant.”

Subtitie G of the Md. Rules prescribes the procedure to be

followed in seeking an attachment on original process. Such

a procedure is available whenever the plaintiff has a

matured or unmatured ex contractu or ex delicto claim

against a person who, inter alia, is a non-resident owning

property or credits within this State. Md. Rules G40, G40a,

G4la. Upon the filing of a declaration, affidavit in support

thereof, documentary evidence of the claim, a bond to the

State in an amount equal to the claim, and instructions to

the sheriff as to the description and location of the property

to be attached, Md. Rule G42, the court may issue an order

directing the attachment. Md. Rule G44. The writ is served

by the sheriff by posting a copy of the writ upon the

property of the defendant. Md. Rule G46. All the above were

caused by Lawyers Title to be accomplished. At issue, here,

is whether there was compliance with Md. Rule G48. That

rule provides:

“In addition to the writ of attachment, the clerk

shall issue a writ of summons to the defendant.

Where the defendant cannot be served with the

writ of summons, and has not voluntarily appeared,

the plaintiff shall make reasonable efforts to

ascertain the actual whereabouts of the defendant

and to bring to the knowledge of the defendant that

an attachment on original process is pending

against him. A judgment of condemnation nisi shal!

not be entered until the plaintiff shall satisfy the

court by affidavit that he has notified the

defendant or has made a bona fide effort to locate

and notify him.”

An affidavit made by Perry Raabe, Esq., recited in detail

the efforts made to effect service upon Overmyer. Mr. Raabe

narrated in his affidavit the gist of his telephone

conversation with Overmyer. We think the affidavit

discloses that the attempts to serve Overmyer were bona

fide and that the trial court properly so held.

Overmyer next asseverates that the “notice” to him of the

suit contained a caveat that he had sixty (60) days in which

to answer, and that the entry of the judgment nisi prior to

the expiration of sixty (60) days was error. The notice to

plead read: .

“You are hereby notified that an Attachment on

Original Process proceeding, or law suit, has been

filed against you by Lawyers Title Insurance

Corporation, Plaintiff ir the above-entitled

proceedings, in the Circuit Court for Baltimore

County, State of Maryland, to recover on the causes

of action therein stated and attached hereto,

pursuant to Rules G40-61, Maryland Rules of

Procedure and related laws. You must plead or

answer the Declaration, or law suit alleging the

causes of action, within sixty (60) days from the

date of delivery noted upon your Return Receipt to

this Notice, or else Judgment by Default may be

entered against you. This Notice and Service is

made pursuant to Rules G48, G5l(a), 307(d 8) and

107(aX2) and (b), Maryland Rules of Procedure, and

pursuant to Article 75, Sections 78, 94-100,

Annotated Code of Maryland (1957 Ed., 1969 Rpl.

Vol.), and Courts and Judicial Proceedings, Article

(1974 Vol.), Section 6-103, 6-301 and 6-304,

annotated [sic] Code of Maryland.”

We perceive no merit in Overmyer’s contention. 4 Poe's

Pleading and Practice § 554 (6th ed. H. Sachs 1975)

{hereinafter referred to as Poe (Sachs)}] and 2 J. Poe,

Pleading and Practice in Courts of Common Law § 554 (5th

ed. H. Tiffany 1925) both state that an attachment

proceeding consists of two distinct parts, one, the

attachment, and the other, a suit against the non-resident

styled the “short note case.” When a defendant appears, he

does so in the “short note case,” not in the attachment. It is

apparent from the record that Overmyer did, under the

guise of an “answer,” file a general issuc plea, in addition to

his “affirmative defenses,” and, thus, appeared and put the

matter at issue before the tial court. Moreover, the fact that

the judgment nisi had been entered prior to Overmyer’s

appearance did not jeopardize appellant because in a hearing

resulting from appellant’s motion to strike the judgment

nisi, the hearing judge, while denying the motion,

nevertheless ordered that “... no Judgment of Con-

demnation Absolute be entered until after a hearing on

the merits.” Such an order had the practical effect of

retaining appellee’s lien while simultaneously assuring

appellant that no further action would be taken thereon

until after a trial on the merits.

Moreover, we think appellant misreads the notice

requirements of the Md. Rules. The notice of suit is directed

to the short note case, not the attachment. 4 Poe (Sachs) §§

554-58. See also 2 J. Poe, Pleading and Practice in Courts of

Common Law §§ 554-58 (Sth ed. H. Tiffany 1925).

In the instant case, Overmyer did not enter his appearance

within the prescribed time, and the title company, having

fully complied with Rule G48, was entitled to the entry of a

judgment nisi. Such a judgment is an inchoate lien which

operates to condemn specific property and render it liable to

future execution and judicial sale, after successful trial, the

obtaining of a judgment of condemnation absolute and the

issuance of a writ of fieri facias thereon. 4 Poe (Sachs) § 690.

A judgment nisi is a specific lien, and should final judgment

be obtained, the lien relates back to the time when the

property was attached and eliminates subsequent claims

and liens from priority. Jd. Of course, if the plaintiff does

not prevail at trial, the attachment fails. 4 Poe (Sachs) § 556;

Philbin v. Thurn er rel. Cook, 103 Md. 342, 351, 63 A. 571,

574 (1906); Randle v. Mellen, 67 Md. 181, 188, 8 A. 573, 575

(1887).

Overmyer also assails the constitutionality of the

Maryland procedure for attachment on original process as it

was applied in the case now before us. He bottoms his

argument on the Due Process Provisions of the 14th

Amendment, pointing out that the Supreme Court of the

United States has “carefully articulated” the proper test to

be applied “. . . with regard to instances where pre-judgment

attach ment of a debtor's property is involved.” The Court, in

Fuentes v. Shevin, 407 U. S. 67, 92 S. Ct. 1983, 32 L.Ed.2d

556 (1972), struck down replevin procedures in use in Florida

and Pennsylvania after noting that in neither State was the

debtor offered a pre-deprivation of property hearing. 407 U.

S. at 90. Similar holdings relative to pretrial disposition

were handed down by the Court in Bell v. Burson, 402 U. S.

535, 91 S. Ct. 1586, 29 L.Ed.2d 90 (1971); Sniadach v. Family

Finance Corp., 395 U. S. 337, 89 S. Ct. 1820, 23 L. Ed. 2d 349

(1969).

The fallacy in Overmyer’s position is that unlike Fuentes,

Sniadach or Bell, there has been, in this case, no deprivation

of property prior to a judicial hearing. At best, an

attachment, an inchoate lien, was laid upon the one-tenth

interest Overmyer had in the realty that was the subject of

the title insurance property, and he was not subjected even

to temporary loss, pendente lite, of the possession of the

property. Mitchell v. W.T. Grant Co., 416 U.S. 600, 94S. Ct.

1895, 40 L.Ed.2d 406 (1974). Compare, however. Roscoe v.

Butler, 367 F. Supp. 574, (D. Md. 1973), wherein Chief Judge

Northrop held unconstitutional the then Maryland District

Court procedure for attachment after two non ests. The

distinction between Roscoe and the instant case is that here

the objectionable feature found in Roscoe, a clerk cloaked

with the authority to issue the attachment, is not present. In

the case sub judice, the right to issue is reserved to the court,

and then only after a“... review of the documents required

...”" to be filed. Md. Rule G44.

As we see it, the procedure followed in the matter now

before us comports with due process of law and adequately

accommodates the antayonistic interests of the parties. We

hold that the Maryland Rules relative to attachment on

original process as applied in the case at bar are

constitutional.

Il.

“The Circuit Court abused its discretion in denying

Defendant’s (Overmyer’s} Motion for Continuance

or Postponement.”

On the day of the hearing on the merits, October 20, 1975,

appellant’s attorney moved for a continuance or

postponement because Overmyer, appellant’s only witness,

could not attend. The reason for Overmyer’s absence was

that he was to appear in an Ohio court in an action that

appellant believed exposed him to greater liability than the

Maryland suit. Judge Proctor examined an affidavit made _

by the appellant’s New York attorney which indicated that

the Ohio suit had been instituted on September 14, 1975,

removed to the federal! district court, and then sent back to

the Ohio courts on October 10, 1975. It appeared that

appellant never requested a continuance or postponement of

the Ohio proceedings although appellant knew of the

October 20, 1975, Maryland hearing date from the time

notice was sent by the court to the parties on September 15,

1975. The hearing judge denied the motion and stated that in

light of this sequence of events, the appellant should have

advised the Ohio court of the prior hearing date in

Maryland.

We agree with Judge Proctor’s analysis and ruling. It is

unmistakable from a reading of the chronology of events

that the Maryland hearing date was firmly set long before a

trial date could have been set in Ohio. That Overmyer

thought the Ohio case would be settled and, thus, the

conflict in the trial dates would disappear is no valid reason,

in our view, for not seeking a postponement of the Ohio

litigation. Appellant’s miscalculation of settlement is not

sufficient reason to postpone the Maryland case. Judge

Proctor properly exercised his discretion in denying the

motion for continuance or postponement. Md. Rule 527. See

Bugg v. Cecil County Comm'rs, 261 Md. 507, 276 A. 2d 31

(1971); King v. Mayor and Council of Rockville, 249 Md. 243,

238 A. 2d 898 (1968); Johnson v. State, 237 Md. 283, 206 A. 2d

138 (1965).

Ill.

“The Circuit Court erroneously found Defendant

{appellant} Daniel H. Overmyer liable for a sum

greater than that specified in the Agreement of

Indemnity.”

10a

The Indemnification Agreement executed by Overmyer, in

consideration of the title company’s issuing, “without

exception,” a policy, provided that Overmyer would

indemnify and hold harmless the Lawyers Title from any

payment that they were called upon to make. The “hold

harmless” proviso embraced “... all liability, loss, costs,

damage, detriments and expense which it may incur or

suffer, including without limitation, court costs and

attorneys’ fees, resulting from or by reason of, or arising out

of or in any way connected with the issuance of ... [a]

binder or ... policy ..., or the filing, enforcement or

attempted enforcement of any ... liens... .” The judgment

that B & E Sales held against Overmyer was described as

follows:

“Judgment dated May 7, 1971 in favor of E & E

Sales Company [sic] in the amount of $7,749.99

together with cost of appeal thereof amounting to

approximately $2000.00, and payments in the

amount of $1400.00 per month to date pursuant to

said judgment.”

The indemnity agreement was dated August 30, 1972.

Overmyer asserts that the policy plainly indicates that he is

ouly liable for payments of judgment to the date the policy

was issued, or a total of $30,749.99 plus costs, assuming no

interim payments had been applied against the judgment.

Needless to say, the title company has a somewhat different

view of what the language contained in the indemnity

agreement means. They argue, inter alia, that they hardly

would have written a policy undertaking to pay all sums due

by Overmyer to B & E Sales in excess of the $30,749.99 when

it is apparent that their exposure would be some $20,000

more.

Judge Proctor reasoned as follows:

as {[PjJaragraph 2 on page 3 of the

Indemnification Agreement provided that the

Indemnitors which include Daniel H. Overmyer,

individually, the defendant, before me would

lla

indemnify Lawyers Title from and against any and

all liability, loss, cost, damage, detriments and

expense, so forth, and then picking up arising out of

or in any way connected with the issuance such

binder or binders and policy or policies that

setforth of [sic).

This Indemnification Agreement is dated August

30th, 1972. Immediately prior thereto Lawyers Title

through its agent Real Estate Title Company

Incorporated issued a [sic] ‘Interim title insurance

binder,’ dated April 23, 1972 which specifically

provided that they would be furnished, that is

Lawyers Title would be furnished an Indem-

nification Agreement. This correctly described

the holder of the monetary decree as B & E Sales

Company and states that the decree provided

for the payment of fourteen hundred dollars per

month by D. H. Overmyer Company, Inc. to B &

E Sales Company starting May 1, 1971 and ending

on February 1, 1976.

The decree also provides for open court costs in

amount of twelve hundred ‘sixty-six dollars and

thirty-six cents.

That paragraph to be noted makes no reference

to the amount of the monetary decree of May 7,

1971 signed by Judge Jenifer which was, according

to paragraph 4, in the amount of seven thousand

seven hundred forty-nine dollars and ninety-nine

cents.

That omission is accounted for by the fact ...

that the basic armount of the decree had been paid

at the time of the execution of the Indemnification

agreement and at the time of the settlement in this

case.

So, we have here a man who is obviously an

experienced businessman signing an Indemnifica-

tion agreement, which according to the only testi-

mony before me, was prepared either on his behalf

l2a

or [on] behalf of the company bearing the name of

D. H. Overmyer which loosely describes the mone-

tary decree, but carries with it a point of pref-

erence, mainly the interim Title Insurance binder

which specifically sets forth the obligations which

...{ were) indemnified by Mr. Overmyer.

Any ambiguity in the Indemnification Agree-

ment is resolved by this [in]corporation of the

binder by reference. So, it is my judgment that

under the decree stated of fact judgment should be

entered in favor of the plaintiff against the

defendant in [the] amount of fifty-two thousand

seven hundred fifty-two dollars plus reasonable

attorney fees.”

We think the phrase “to date pursuant to said judgment”

was intended by the parties to mean not that Overmyer

agreed to hold harm!ess the title company only to the date of

the indemnity agreement, but rather to hold them harmless

for the payments required to the date set forth in the

judgment, i.e, February 1, 1976. When the title policy

binder is read in conjunction with the title policy, no other

reasonable interpretation can be made. We are unpersuaded

that there was a mutuality of mistake by the parties because

it is apparent from a reading of the record that appellant,

Overmyer, knew precisely what payments Overmyer, Inc.,

was required to make on the judgment against the

corporation.

Furthermore, the indemnity agreement calls upon

Overmyer to repay Lawyers Title for any and “all liability”

they sustained as a result of issuing the title policy. As we

have previously observed, the title company was required to

pay to B & E Sales $52,749.99 in order to protect the policy

insured. Overmyer is liable to the title company for that

compelled expenditure.

IV.

“The Circuit Court erred in rendering an in

personam judgment against the Defendant Daniel

—-

l3a

H. Overmyer because he was never personally

served, and by his appearance, did not subject

himself to a personal judgment.”

Overmyer bottoms his argument in the above-quoted

contention upon three decisions by the Court of Appeals,

scilicei, Eshelman Motors ex rel. Ottenheimer v. Scheftel, -

231 Md. 300, 189 A. 2d 818 (1963); Miller Bros. Co. v. State,

201 Md. 535, 546-47, 95 A. 2d 286, 291-92 (1953); and Potomac

Steamboat Co. v. Clyde, 51 Md. 174 (1879). Eshelman holds

that a court has revisory powers over its own judgments for

thirty days following entry of the judgment. In cases more

than thirty days old, a judgment may only be set aside for

fraud, mistake, or irregularity, and even then only if a

meritorious defense to the plaintiff's claim is shown. Himes

v. Day, 254 Md. 197, 254 A. 2d 181 (1969). Potomac states

that:

“There is no doubt of the legal right of the

defendant to appear for that purpose [1.e., to move

to strike a judgment condemnation and quash

execution] in the attachment case, without thereby

being within the jurisdiction of the court in respect

to the suit against him personally.” 51 Md. at 179.