Abell v. Simon

• Decision Date: 27 June 1878
• Citation: 49 Md. 318
• Parties: EDWIN F. ABELL, Garnishee of Elisha Riddle v. MAIER SIMON, Use of Henry Simon.
• Court: Maryland Court of Appeals

49 Md. 318

EDWIN F. ABELL, Garnishee of Elisha Riddle v. MAIER SIMON, Use of Henry Simon.

Court of Appeals of Maryland

June 27, 1878

Appeal from the Circuit Court for Baltimore County.

Maier Simon, on the 28th of September, 1869, recovered against Elisha Riddle a judgment by confession for $619.67. On the 16th of August, 1875, the judgment was entered to the use of Henry Simon, and on the same day an attachment was issued thereon, returnable on the second Monday of September, 1875. The writ of attachment was returned endorsed as follows "Laid in the hands of Ed. F. Abell on the 30th of August, 1875, at 10 A. M., and summoned him as garnishee. Samuel F. Butler, Sheriff." On the 13th of September 1875, being the return day of the writ, neither garnishee nor defendant appearing, condemnation nisi was entered against the garnishee, and on the 1st of December, 1877, the judgment of condemnation was made final and extended by the court for the plaintiff for $920.52. On the 29th of January 1878, a writ of fieri facias was issued on said judgment, and on the 11th of February following the garnishee moved to strike out the judgment and to quash the execution on the ground, among others, that said judgment was entered by mistake and was a surprise to the said garnishee. These motions were overruled by the court, and from the order overruling the motion to strike out the judgment, as also from the order overruling the motion to quash the execution, this appeal was taken. The case is further stated in the opinion of the court.

The cause was argued before BARTOL, C.J., STEWART, BRENT, ALVEY and ROBINSON, JJ., and a brief was also filed for the appellant by Attorney-General Gwinn.

William S. Keech, R. R. Boarman and Charles J. M. Gwinn, Attorney-General, for the appellant.

The judgment against the appellant is a nullity and should be stricken out, and the fi. fa. issued thereon should be quashed.

In Tiernan v. Hammond, 41 Md. 548, this court held that "upon a motion to strike out a judgment after the term is past, the courts in this State exercise a general equitable jurisdiction, and will therefore consider all the facts and circumstances of the case," etc. In Smith v. County Commiss'rs, 46 Md. 617, this court held that in motions to strike out a judgment and quash the writ of fi. fa., the courts exercise a quasi equitable jurisdiction. Bridendolph v. Zeller, 3 Md. 325; Montgomery v. Murphy, 19 Md. 576.

A court of equity exercising general equitable jurisdiction would grant relief if a case like the one at bar were presented.

Gardner v. Hardy, 12 G. & J. 365, shows to what extent a court of equity will go to grant relief in a case where it would be against conscience and equity to enforce a judgment. The case at bar is stronger than that case; Mrs. Gardner confessed a judgment in favor of plaintiff, although she thought a receipt had been given and could be produced.

A court can grant relief after the term. Kearney v. Sascer, 37 Md. 274; Sherwood v. Mohler, 14 Md. 564; Broom's Legal Maxims, 309; Tiernan v. Hammond, 41 Md. 548.

The courts have decided that "surprise" is a fraud. Earl of Bath and Montague's Case, 3 Ch. Cases, 56, 74, 103, 114; Townshend v. Stangroom, 6 Ves. 327, 328, and in Jeremy's Eq. 383, "fraud" and "surprise" are treated as synonymous.

The motion to quash the fi. fa. issued against the appellant, ought to have been granted. The attachment was laid in the hands of Ed. F. Abell. The fi. fa. could only have been directed against Ed. F. Abell. The fi. fa. could not, and cannot, be corrected by the writ of attachment, because both instruments erred in the designation of the name of the appellant. There is no mode of amending a fi. fa. except by reference to the record. Freeman on Executions, sec. 78.

The use of the word "Edward" instead of "Edmund," or of "Edmund" instead of ""Edward," in a writ of capias ad satisfaciendum is error requiring correction. Brown v. Hammond, Barnes' Notes, 10, 11.

The use of the word "Ed.," which is an abbreviation of "Edward," "Edmund," or ""Edwin," is, therefore, certainly an error requiring correction. It was the designation of the appellant by a wrong name. The appellant did not appear to the suit in question. There is no evidence in the record that he was the party intended to be sued. He has not been connected with the judgment rendered in this case by any proper averments. The motion to strike out the fi. fa. ought, therefore, to have been granted.

John Grason and John T. Ensor, for the appellee.

In the case of Anderson v. Graff, 41 Md. 608, it is said "that to justify the striking out of a judgment, it is necessary that clear and convincing proof be given that the garnishee was prevented from making his defense by deceit practiced upon him by the plaintiff." In this case there is no such proof. There is no proof whatever that the plaintiff practiced any fraud, surprise or deceit in obtaining the judgment.

The grounds of relief are practically two--the absence of assets in the garnishee's hands liable to attachment, and want of notice or service.

"If the appellee had proper notice the want of funds could not be inquired into, because the failure to plead after due notice is an admission of assets. The garnishee would not be permitted to avail himself of his own remissness to repel a presumption of law growing out of his silence." Sarlouis v. Ins. Co. 45 Md. 243.

The only inquiry in the case seriously claiming the consideration of the court is that which technically amounts to a charge of false return against the sheriff. We think that this is far from being sustained by the evidence. The testimony on the part of the appellant to prove want of notice is uncertain, indefinite and negative in its character. None of the witnesses for the appellant are able to say that he was not summoned, and he does not positively deny the service, but says that he does not recollect or remember it.

On the other hand the testimony of the deputy sheriff is affirmative, positive and particular and corroborated by the endorsement on the writ.

The appellee's judgment was rendered several terms anterior to the motion to strike out, and it would be contrary to a long course of established decisions to disturb it without clear and convincing proof of fraud, surprise or irregularity. Sarlouis v. Ins. Co. 45 Md. 245; Kemp v. Cook, 18 Md. 130; Montgomery v. Murphy, 19 Md. 580; Gardner v. Jenkins, 14 Md. 62; Sherwood v. Mohler, 14 Md. 564; Katz v. Moore, 13 Md. 566.

Where the process is regularly...