Frantz v. Lane

• Decision Date: 15 January 1936
• Docket Number: 33.
• Citation: 182 A. 337,169 Md. 703
• Parties: FRANTZ v. LANE.
• Court: Maryland Court of Appeals

182 A. 337

169 Md. 703

FRANTZ v. LANE.

No. 33.

Court of Appeals of Maryland

January 15, 1936

Appeal from Circuit Court, Allegany County; David A. Robb, Judge.

Fieri facias proceeding by Ralph Frantz against J. T. Lane, wherein Mrs. J. T. Lane filed a motion to quash the writ and return. From a judgment sustaining the motion, plaintiff appeals.

Affirmed.

Argued before BOND, C.J., and URNER, OFFUTT, PARKE, SLOAN, MITCHELL SHEHAN, and JOHNSON, JJ.

Estel C. Kelley, of Cumberland, for appellant.

Taylor Morrison, of Cumberland (Edward J. Ryan, of Cumberland, on the brief), for appellee.

SLOAN Judge.

The appellant, Ralph Frantz, on April 18, 1935, recovered a judgment in the circuit court for Allegany county for $422.10 against J. T. Lane, and on the same day caused a writ of fieri facias to be issued and levied on a stock of merchandise and fixtures in a store licensed in the name of Mrs. J. T. Lane, located at No. 403 Oldtown road in Cumberland. On April 23, 1935, Mrs. Lane filed a motion to quash the writ and return "because the levy made by the Sheriff is upon goods, wares and merchandise belonging to Mrs. J. T. Lane and are not subject to the judgment and levy made by the sheriff upon a judgment against J. T. Lane." As some of the goods so levied upon were perishable, the motion was heard on the merits the same day, and the motion having been sustained, the plaintiff appealed.

The dealings between Frantz and Lane began in 1932, when he set Lane up in the grocery business on Bedford street in Cumberland. He was in business five or six months, when Frantz "moved his stuff down to Mr. Ruckman's at Wiley's Ford, West Virginia," on the opposite side of the Potomac river from South Cumberland He bought the stock in that store for $190 and turned it over to Lane. J T. Lane had evidently made a failure of the grocery business so on or about May 1, 1934, his wife, the claimant, rented a storeroom on the Oldtown road in Cumberland from a Mrs Gracie, who had previously rented to a Mr. Wemple, from whom Mrs. Lane bought the business. Mrs. Gracie testified that Mrs. Lane was her tenant. Mrs. Lane took out a trader's license, and the business has ever since been conducted in her name.

The only evidence here is that there was a transfer of about $40 worth of merchandise from J. T. Lane's store at Wiley's Ford, W. Va., to the store on the Oldtown road in Cumberland, Md., while the value of the merchandise levied on is worth eight to nine hundred dollars, and the appellant does not pretend that he can identify any of the goods levied on as those moved from West Virginia. In the normal turnover of merchandise it is probable that little, if any, of the West Virginia stock is still in the Cumberland store.

The evidence clearly shows that this is not a case wherein the husband has conveyed his property to his wife in fraud of his creditors. He had twice ventured into the grocery business, and then his wife thought she would try it, and she did, apparently with much better success than did her husband. On the issue of fact, on the motion to quash which was in effect a claimant case (Code, art. 9, § 47), the trial court found for the claimant.

Ordinarily a motion to quash an execution is based on matters appearing on the face of the proceedings (2 Poe, Pl. & Pr. § 685, Tiffany Edition), but the practice of raising the question of ownership of property levied on by motion to quash in attachment cases has been held by this court to be applicable to cases where goods are taken in execution, and that from the decision of the trial court in such cases there is an appeal. That they are to be treated alike is declared in Sharpless Separator Co. v. Brilhart, 129 Md. 82, 86, 98 A. 484, 486, wherein it was said: "As we have seen, this was an attachment on a judgment, the office of which is like that of a fieri facias, although the procedure is different. If a fieri facias is quashed, so that property seized under it is released, there is an appeal. Wilmer v. Harris, 5 Har.&J. 1; Hollingsworth's Adm'x v. Floyd, 2 Har.&G. 87. 'The process of attachment on judgment, under the act of 1715, c. 40, § 7 (now a part of section 29, art. 9), is considered as an execution and governed by the same principles.' Baldwin v. Wright, 3 Gill, 241; Griffith v. Ins. Co., Garnishee, 7 Md. 102." Neuman Co. v. Duhadaway, 154 Md. 595, 141 A. 342; Hodge & McLane on Attachment, § 251. If either party requires it to be done, the motion or claim must be heard on the merits by a jury; but the court may, if the parties agree, hear and pass on the merits in a summary way, and neither party can thereafter complain of his tribunal. Howard v. Oppenheimer, 25 Md. 350; Clarke v. Meixsell, 29 Md. 221, 227; Stewart v. Katz, 30 Md. 334, 346; Kean v. Doerner, 62 Md. 475, 478; Hodge and McLane on Attachment, § 172; 2 Poe, Pl. and Pr. § 561.

The statutory method whereby a third party...