Boyd v. Chesapeake & Ohio Canal Co.

• Decision Date: 20 June 1861
• Citation: 17 Md. 195
• Parties: WILLIAM BOYD and JOHN M. HAUCK, Sheriff, v. THE CHESAPEAKE & OHIO CANAL COMPANY.
• Court: Maryland Court of Appeals

17 Md. 195

WILLIAM BOYD and JOHN M. HAUCK, Sheriff, v. THE CHESAPEAKE & OHIO CANAL COMPANY.

Court of Appeals of Maryland.

June 20, 1861

The word " process, " used in the 5th sec. of the Act of 1832, ch. 306, is sufficiently comprehensive to apply to the service of writs of attachment on a corporation as garnishee, and any corporation chartered by the laws of Maryland, may be brought into court as defendant, in the mode pointed out by that section.

Service of notice of an attachment upon two of the officers and directors of a corporation, is sufficient notice to the corporation; if notice is given to a director, officially for the purpose of being communicated to the board, although such notice should not be communicated, the corporation is bound by it.

It is clearly within the power of the court, upon application made within the term, to allow a sheriff to amend his return to a writ of attachment, and, by the Act of 1854, ch. 75, the return to such writs is made evidence of the same, as in case of service of other writs.

A plaintiff in attachment, who files interrogatories to be answered by the garnishee, may waive them, and a rule of court as to service of them, & c., is not to be enforced until the appearance of the garnishee, and the plaintiff becomes informed of the defence relied upon.

If there be irregularity in entering a judgment of condemnation by default against a corporation, because a writ of inquiry was not first had, as provided by the Act of 1834, ch. 305 sec. 4, such irregularity will not justify the interference of a court of equity, by injunction, to restrain execution of the judgment.

The Chesapeake & Ohio Canal Company cannot shelter itself or shield its property from execution by its creditors, under the protection of mortgages thereof, executed by it to the State; whatever protection the State may be entitled to claim as mortgagee, must be asserted by itself.

APPEAL from the Equity Side of the Circuit Court for Washington county.

The bill in this case was filed on the 16th of October 1858, by the appellee against the appellants, for an injunction to stay execution of a judgment of condemnation against the complainant, in favor of the defendant, Boyd.

It appears, from the record, that Boyd had recovered a judgment against one Wm. Brown, in the circuit court for Washington county, for $1435.51, with interest and costs, upon which he issued an attachment, by way of execution, returnable to the November term, 1857, of that court. The return of the sheriff to this writ states that he laid the same, on the 18th of August and 11th of September 1857, in the hands of Jacob H Grove and Jas. Coudy, two of the directors of the Chesapeake and Ohio Canal Company, and gave them notice to appear, &amp c. Subsequently, on the first day of the succeeding term, upon application of the plaintiff, the court granted leave to the sheriff to amend his return, and he accordingly filed an amended return, as follows:

" Laid the within and foregoing attachment in the hands of the Chesapeake & Ohio Canal Company, to the amount of the damages, interest and costs, on the 18th day of August 1857, and then and there gave notice to Jacob H. Grove, as one of the officers and directors of the said canal company, and on the 11th day of September 1857, also gave notice to James Coudy, another officer and director of the said canal company, that the said Chesapeake & Ohio Canal Company be and appear in the said circuit court here, to show cause why the said sum of money so attached should not be condemned for the use of the plaintiff in the said attachment, and so-forth, as by the said writ I was commanded."

Upon the return of the attachment a case was regularly docketed against the said canal company, as garnishee, and interrogatories filed, to be answered by the said garnishee. The company failing to appear at the return term, the case was continued to the succeeding March term, and the garnishee still failing to appear, a judgment of condemnation was entered, on the 1st of April 1858, for the whole amount of the judgment on which the attachment issued. On this judgment of condemnation a fi. fa. was issued to the November term, 1858, of said court, under which the sheriff proceeded to levy upon and seize certain personal property of the canal company, along the line of the canal, in Washington county, consisting of house canal-boats, dirt scows, and furniture thereto, a horse, mare, and various tools, implements, & c., and advertised the same for sale, on the 19th of October 1858.

To restrain this proceeding the injunction was applied for in the present case. The bill states that the complainant is a corporation chartered by the laws of Maryland, having its office or place of business at the time of issuing said attachment and all the proceedings thereunder, and at the present time, in the city of Washington, in the District of Columbia, and asks for an injunction upon the following grounds:

1st. That the attachment was not made known to the complainant in the mode and manner of serving such a writ upon a body corporate, either at common law or under the statutes of Maryland.

2nd. That by rule 41 of said court, (a certified copy of which is exhibited,) it is required that " on filing of interrogatories to be answered by a garnishee in attachment, a rule shall be entered that the garnishee answer the same in fifteen days after service of a copy of said interrogatories and of said rule," the law itself requiring that where interrogatories are exhibited in writing to a garnishee, they should be answered by a rule of court. That in this case no such copy of the interrogatories filed was ever served upon the complainant at any time, nor was a rule entered in said case that the complainant, as garnishee, should answer the same.

3rd. That regarding said judgment of condemnation as a judgment by default, no inquiry by a jury was instituted to ascertain the amount of the plaintiff's claim, as required by Act of Assembly in such case made and provided, where a corporate body is in default.

4th. That the fieri facias was issued in this case without the plaintiff in the execution having first entered, or given good and sufficient security before said court to make restitution, as provided by Acts of 1715, ch. 40, sec. 3, and 1834, ch. 189.

Upon these reasons the complainant relies to show that the judgment of condemnation is void and of none effect. The bill then further charges:

5th. That in the matter of the attachment and judgment of condemnation the complainant has been taken greatly by surprise, having had no knowledge of the same until execution was issued and levied, and having at no time appeared to the suit as garnishee, and that the case was docketed against it as garnishee under the direction of Boyd, or his attorney, and without the knowledge or consent of the complainant. That it has no knowledge that the attachment was made known to any of the directors or other officers of the company, more than what is disclosed in the return of the sheriff to said writ, and then only since said execution and levy; that it owed Brown but a small sum of about $175, and had it been aware of this proceeding, it would have appeared, answered the interrogatories and protected itself against the recovery of so large and unjust a judgment.

6th. That the canal-boats, scows and other articles taken under execution, are the necessary implements for keeping the canal in repair, and accommodating it to its chartered purposes, and that such things are expressly exempt from attachment or execution by the laws of Maryland.

7th. That in pursuance of sundry Acts of the General Assembly of Maryland, granting loans and subscriptions to the complainant, for carrying on and completing its said work, the said complainant having agreed to and accepted the provisions thereof, and availed itself of the pecuniary aid thereby provided, was required to make and did make to the State of Maryland, from time to time, various mortgages and conveyances of all its property, real and personal, then or thereafter acquired, and all its nett tolls and revenues, to secure the payment of principal and interest, and the fulfillment of the various conditions imposed upon it by said Acts of Assembly, all of which said Acts and mortgages are more particularly mentioned, referred to and exhibited in another bill of complaint filed in this court by the said State of Maryland against the said William Boyd and John M. Hauck, sheriff, for an injunction to stay the said sale of the sheriff of the said articles levied upon under said fi. fa., and to which, without repeating or exhibiting the same more particularly, the complainant prays leave to refer and rely upon in the same manner as if they were herein and herewith as fully set forth and exhibited; that the said chattels and effects are covered by said several mortgages, and are the property of the State of Maryland, for the purposes aforesaid, though in possession of the complainant, for the use of its work, as hereinbefore stated, and that the same, or the equity which the complainant has therein, cannot be levied upon to satisfy any debt of the complainant.

8th. That to deprive the complainant of said property, by sale or otherwise, would work great and irreparable injury to the complainant, in the condition in which it now is with regard to the repairs on said canal, particularly on that portion of it on which said property now is, the said company being engaged in the construction of two new dams across the Potomac, of the most urgent and vital necessity, and at a season of the year when every day is important, and if the defendants were allowed to proceed with said execution and sales, the work of the...