Graff v. Merchants & Miners Transp. Co.

• Decision Date: 06 June 1862
• Citation: 18 Md. 364
• Parties: GEORGE U. GRAFF and AUGUSTIN GAMBRILL, v. MERCHANTS and MINERS TRANSPORTATION COMPANY, Garnishee of BERNARD.
• Court: Maryland Court of Appeals

18 Md. 364

GEORGE U. GRAFF and AUGUSTIN GAMBRILL, v. MERCHANTS and MINERS TRANSPORTATION COMPANY, Garnishee of BERNARD.

Court of Appeals of Maryland.

June 6, 1862

An appeal lies from an order, passed after the lapse of the term, setting aside an execution, and striking out a judgment of condemnation, in an attachment case, and directing the case to be brought up by the entry of regular continuances: such a judgment was absolute and final.

Where the writ of attachment was not returned until after the return day, and the docket entries of the case against the garnishee, were made, and judgment of condemnation entered, as of the return day, the entry of the judgment was entirely unauthorized and irregular, and justified the order to strike it out.

If such entries were made after the return of the writ, they constituted, to the extent of the judgment, a false record, and if made before, the garnishee was not then so in court as to authorize the docketing of the case against him, or entry of the judgment of condemnation.

APPEAL from the Superior Court of Baltimore City.

Attachment on warrant, issued June 4th, 1857, at suit of the appellants, on a protested draft of L. Bernard for $600, endorsed by the plaintiffs.The writ commands the sheriff to attach the land, goods, credits, & c., of Bernard, " to the value of $602.18, current money, and cost of this attachment, according to the form of the Act of Assembly in such case made and provided," with the usual scire facias clause.The return besides " attached as per schedule," states the writ was laid in the hands of several other parties, and, " also laid in the hands of the Merchants and Miners Transportation Company on the 5th day of June 1857," by service on its president, in the presence of two witnesses.The case against this company, as garnishee, was docketed, and judgment of condemnation nisi, for want of appearance, entered September 14th, 1857, the return day of the writ.This judgment as extended in the record, states that the garnishee makes default, and it is thereupon " adjudged, " & c., " that the said garnishee hath in its hands goods and credits of the said defendant, to the value of the sum of money in the writ of attachment aforesaid specified, " and that the same " be condemned in its hands according to the Act of Assembly aforesaid, towards satisfying unto the said plaintiffs, as well the aforesaid sum of $602.18, in the writ of attachment aforesaid specified," as the costs, & c. On this judgment a fi. fa. was issued January 12th, 1859, and on the 4th of March following, the garnishee filed its petition asking that this judgment and execution be set aside, an appearance allowed, and the case brought up by regular continuances.The only reason for this action set forth in the petition, which need be stated, is, that the writ of attachment was not returned till November 10th, 1857, and the judgment was of a date prior to the return, and was therefore irregularly entered.On this point, and as to the time when the docket entries were made, as well as others, testimony was taken on both sides, the effect of which is stated in the opinion of this court.The court below (LEE, J.) on the 9th of March 1859, ordered the judgment and fi. fa. to be set aside, and the case brought up by regular continuances, and placed on the trial docket.From this order, the plaintiffs appealed, and before argument in this court, the appellee moved to dismiss the appeal.

The cause was argued before BARTOL, GOLDSBOROUGH, and COCHRAN, J., by Wm. J. Ward, for the appellants, and by Geo. M. Gill and J. Mason Campbell, for the appellee.

The motion to dismiss, was urged upon the ground that the judgment of condemnation nisi was not, under the circumstances, a final determination of the cause, and therefore the appeal was prematurely taken, and must be dismissed.11 G. & J., 405, Keirle, et al vs. Shriver.This case differs from that of Green vs. Hamilton,16 Md. Rep., 317, in this, that the defendant had appeared in that case, and judgment by default had been entered against him, and subsequently an inquisition had been taken, and final judgment entered upon that inquisition, and the term at which the judgment had been entered had expired, and a motion was then made to strike it out, which the court below sustained, and an appeal was taken and held to be properly taken.In that case the judgment stricken out was final, and entered up in full, whilst in this, the judgment of condemnation nisi was entered, but never entered in full, and could not have been so entered until the property attached and delivered to the plaintiffs had been disposed of; --then, and not until then, could a final judgment have been entered for the balance of the plaintiffs' claim.

On the part of the appellants it was insisted, as against the motion, that the judgment of condemnation, though called a judgment nisi, because the garnishee has the right to appear during the term, and have it stricken out, is improperly so called, and is in fact an absolute, unconditional judgment, and, after the lapse of the term, is final, and upon it execution may be issued as on any other judgment.Ev. Pr., 99. 17 Md. Rep., 505, Walters & Harvey vs. Munroe.Here the term had passed, and execution was issued on this absolute and unconditional judgment, and this execution, by the order appealed from, was quashed, and the judgment set aside on motion made after the term had elapsed.The reasoning of the court in Green vs. Hamilton, is conclusive of the right to appeal from such an order in such a case; --a scrious injury would be sustained by the plaintiffs, if deprived of their judgment, and the chance of reaping its fruits, although they may eventually succeed in the cause.

The arguments upon the proof in the case, as to the time when the writ was returned, and the docket entries of the judgment were made, need not be stated.

It was also insisted, on the part of the appellee, (and this was the only point argued by Mr. Campbell, ) that the judgment was irregular and entered without authority, because it assumed assets of the defendant to the amount of the plaintiffs' claim, to be in the hands of the garnishee.No power existed in the court, to make that assumption without proof; the only contingency in which, under our attachment laws, such a power is exercisable, is where the garnishee is in contempt for not answering interrogatories, (Act of 1795, ch. 56, sec. 5,) and expressio unius est exclusio alterius.To recover against a garnishee, assets must be shown affirmatively to be in his hands.Act of 1715, ch. 40 sec. 4.Drake on Attach., sec. 461.When a party sued is in default, the course is to take a judgment by default, if there is any thing in the caseasserting his liability, but not otherwise, and then to assess the damages by an inquisition.Ev. Pr., 335. 7 Viner'sAbr., 461, Default,pl., 3. 3 Bl. Comm., 274.Fitzherbert, 330, 390.In this case there was no averment any where of any kind, in the record, that the garnishee owed the defendant any thing, or had any assets of the defendant in its hands.At the time of the publication of the original edition of Harris' Entries, the sheriff returned, " that he had attached property of the defendant to amount of the plaintiffs' debt in the garnishee's hands," and upon such a return only, did condemnation go where there was no appearance for the garnishee.2 Harr. Ent., 79, 80, 164, 215, 216.This form of return, asserting...