Fritchey v. Bosley

• Decision Date: 18 March 1881
• Parties: JOHN G. FRITCHEY, Assignee of THEODORE L. FRITCHEY v. JOSHUA BOSLEY and JOSHUA N. BOSLEY.
• Court: Maryland Court of Appeals

56 Md. 94

JOHN G. FRITCHEY, Assignee of THEODORE L. FRITCHEY v. JOSHUA BOSLEY and JOSHUA N. BOSLEY.

Court of Appeals of Maryland

March 18, 1881

APPEAL from the Circuit Court for Carroll County.

The case is stated in the opinion of the Court.

The cause was argued before BARTOL, C.J., BOWIE, ALVEY and IRVING, J.

Wm. P. Maulsby, for the appellant.

Wm. M. Merrick, for the appellant.

ALVEY J., delivered the opinion of the Court.

The judgment was recovered by T. L. Fritchey against Joshua Bosley and Joshua N. Bosley, on the 3rd of October, 1873, for $6000, and which judgment was assigned, on the 31st of December, 1873, to John G. Fritchey.

On the 3rd of November, 1874, four attorneys entered their appearance for the assignee of the judgment, and directed execution to issue, and which was accordingly issued and placed into the hands of the sheriff. Under this execution the sheriff seized and sold certain personal property of Joshua Bosley, one of the defendants in the judgment, and realized therefrom the sum of $781.41, and made return accordingly.

On the 11th of December, 1874, the attorneys, whose appearance had been entered for the assignee, professing to act for and in his behalf, filed in the cause an order directing the clerk of the Court to enter of record a release from the operation and effect of the judgment, of certain land, which belonged to Joshua N. Bosley, and was bound by the judgment; and which land had been sold and conveyed by Bosley and wife to Henry Warner. This release was entered in pursuance of an agreement with Bosley and Warner, by which the sum of $2000, much the larger part of the purchase money paid by Warner for the land, was paid over to the attorneys, or one of them, to be applied to the payment of the judgment. After this, the judgment was allowed to stand until the 4th of February 1879, when another attorney entered his appearance for the assignee of the judgment, and directed a fi. fa. to issue thereon. Upon this last execution credit for the sum of $781.41, the amount made by the sale of the personal property under the first execution, was entered; but there was no credit entered for the $2000, received of the purchase money paid by Warner; and the land sold and conveyed to the latter by Joshua N. Bosley and wife was levied upon and seized by the sheriff under this last execution. There was no other property levied on, and the sheriff made return of the execution and his levy thereunder to the Court; the land being appraised at $2700.

Whereupon, David Bosley, who had become the owner of the land, came into Court and moved to quash the execution, and assigned various reasons in support of the motion; among which were, that the writ had irregularly and improperly issued; that the land levied on had been released from the operation and effect of the judgment, by the assignee thereof; and that the assignee had received the consideration for the release of the land from the operation of the judgment.

At the trial of the motion there was proof produced, and the Court having sustained the motion to quash, the case is presented to this Court on ...