Rowan v. State, to Use of Grove
| Decision Date | 08 April 1937 |
| Docket Number | 16. |
| Citation | 191 A. 244,172 Md. 190 |
| Parties | ROWAN ET AL. v. STATE, TO USE OF GROVE. |
| Court | Maryland Court of Appeals |
Appeal from Circuit Court, Baltimore County; Frank I. Duncan, Judge.
Suit by the State of Maryland, for the use of Charles E. Grove against Joseph P. Rowan and others. Judgment for the plaintiff, and the defendants appeal.
Reversed and remanded for a new trial.
Argued before BOND, C.J., and URNER, OFFUTT, PARKE, SLOAN, MITCHELL SHEHAN, and JOHNSON, JJ.
James Clark, of Ellicott City (H. Courtenay Jenifer, of Towson, on the brief), for appellants.
Allan Eli Cohan, of Baltimore, and Cornelius V. Roe, of Towson (Joseph L. Donovan, of Ellicott City, on the brief), for appellee.
The equitable plaintiff, Charles E. Grove, appellee, brought suit in the name of the State, for his use in Howard county against Joseph P. Rowan, principal, and Frank G. Haller and Anna Haller, his wife, sureties on replevin bonds which Rowan had filed in a suit against Grove in Prince George's county.
The declaration says that on May 23, 1933, Joseph Rowan had issued out of the circuit court for Prince George's county, a writ of replevin for a certain race horse named "Flying Max," tackle and other race horse equipment, then in the possession of Charles E. Grove and gave bond to the State of Maryland in the sum of $730, and on June 16, 1933, an additional bond of $2,000, on both of which Frank G. Haller and Anna Haller, his wife, were sureties, conditioned for the successful prosecution of the suit, otherwise for the return of the property replevied; that Joseph P. Rowan did not prosecute the suit with effect, and when the suit was called for trial in the circuit court for Howard county, to which it had been removed, he failed to appear and a judgment of non pros. was entered against him. Of the effect of Rowan's nonaction in the replevin, it may be said, as in Belt v. Worthington, 3 Gill & J. 247, 252: "The judgment by default in the replevin bond against the defendant, only admits, that he did not prosecute his writ of replevin with effect; and it is incumbent on the plaintiff in the action, to show the damage which he has sustained by the failure to prosecute." Rowan having failed to return the property replevied, Grove brought suit on the replevin bonds in Howard county, whence the case was removed to the circuit court for Baltimore county for trial, where it was tried by the court sitting as a jury, and from a judgment for the plaintiff, the defendants appeal.
It appears from the record that whatever title Grove had to the horse and tackle was derived from an attachment suit brought in Anne Arundel county by one Eddie Myers, against Harold Latang, from whom Rowan claims to have bought the horse several weeks before the attachment was issued.
The defendants reserved four exceptions, of which two were on objections to evidence, one, the third, to the court's refusal of ten of their eleven prayers, and the fourth abandoned on appeal.
The defendants' A prayer is the usual demurrer prayer, and the first and second, practically the same as the A prayer, for they asked the court to declare as a matter of law that the plaintiff was not entitled to a verdict for more than nominal damages.
These prayers directly raise the question of Grove's title to the horse, which it is admitted was derived from the attachment proceedings, and assume that his failure to show a good title would disentitle him to recover more than nominal damages, if anything. With all the presumptions in favor of the regularity of the attachment proceedings (Davis v. Helbig, 27 Md. 452, and note [Perkins Ed.], 92 Am.Dec. 646; West v. Wood Co., 140 Md. 514, 118 A. 69; 5 Am.Jur. 226, § 1033), they do not affect any rights that Rowan may have in the horse. 5 Am.Jur. 226, § 1033. It was replevied out of the possession of Grove, and if Rowan cannot prove his ownership then it, or its value, goes back to Grove. Glenn v. Fowler, 8 Gill & J. 340, 348. In this case, Rowan, if he is entitled to a verdict, must get it on the strength of his title, rather than on the weakness of Grove's. When Grove shows his title is by purchase from a sheriff executing a writ of fi. fa. on a judgment of condemnation, he makes out a prima facie case of right of possession. That, however, does not give him an absolute title to the property of a stranger to the attachment.
According to the record, Eddie Myers, a trainer, had in his custody a horse named "Flying Max," entered on the Maryland tracks as the property of H. Latang. Myers, claiming that Latang owed him five and a half months' wages (or salary) from May 17, 1932, which would run to about November 11, 1932, at $100 a month, and $100 for feed, caused a nonresident attachment to be issued out of the circuit court for Anne Arundel county against Latang; the sheriff's return on the back of the writ being: "Attached as per schedule Dec. 10, 1932, and copy left in hands of Eddie Myers and summoned him as garnishee, short note posted on Court House door Dec. 10, 1933." He also filed a schedule of property attached, containing the following: "Attached Dec. 10, 1932, 1 race horse known as 'Flying Max,' 1 bridle, 1 saddle, 1 tool chest etc. all at Barn #8, Laurel Race track, Md. and copy left with Eddie Myers, plaintiff, and summoned him as garnishee." An appraisal of the horse and tackle was made, a garnishee's case docketed in the name of "Eddie Myers vs. Eddie Myers, Garnishee of H. Latang," a judgment of condemnation nisi entered, condemning the property of the defendant in the hands of the garnishee which, later, was made absolute and execution ordered on the filing of a bond, and execution was issued against the goods and chattels in the hands of the garnishee and the horse, etc., sold after levy, advertisement, and sale, to Clyde E. Grove. There does not seem to have been any step in an orderly attachment missing. Code, art. 9; Poe's Practice, § 505 et seq. The defendants contend that the attachment was laid on the horse and it should have been sold under the writ of fi. fa. against the horse, and not on a fi. fa. against Myers, garnishee. There is evidence in the record that the horse was, at the time, in the custody of Myers, and an attaching creditor can also be plaintiff and garnishee. Code, art. 9, § 10; Poe's Practice, § 532; Owens v. Crow, 62 Md. 491, 498; Albert v. Albert, 78 Md. 338, 345, 28 A. 388; Deibert v. State, 150 Md. 687, 691, 133 A. 847.
The defendants' contention is, if we understand them correctly, that the horse never was sold by the sheriff, and this seems to be their reasoning. They find no complaint with the form of the proceedings up to the issuance of the writ of fi. fa. on the judgment of condemnation. The writ issued by the clerk commanded the sheriff to levy on "the goods and chattels, lands and tenements of the said Eddie Myers garnishee of H. Latang in your bailwick being," which they contend is in personam against Myers and not in rem against the property, credits, etc., of Latang in his possession, and they rely on the case of International Co. v. Terminal Warehouse Co., 146 Md. 479, 126 A. 902, 40 A.L.R. 960, of which we fail to see the application. The question there was the liability of the garnishee for merchandise it had released after the laying of the attachment, and whether it was liable in personam for the goods subject to the levy. The judgment of condemnation was of the "assets" in the hands of the garnishee, and the writ of fi. fa. was against the goods and chattels of "the said Eddie Myers, Garnishee of H. Latang," and not against Myers personally, and the only inference to be drawn from this language is that the goods of Latang in Myers' hands were to be sold and were later sold by virtue of the writ not only of fieri facias, but of the original writ as well, from which the purchaser's title was derived, and we do not think the form of the writ of fieri facias had the effect of changing what began as a proceeding in rem to one in personam. "Whatever may be the rights acquired by a purchaser, under an execution issued upon a general judgment, in this case, where the proceeding was in rem by attachment, and the judgment one of condemnation of the particular property, we are clearly of opinion that the lien of the judgment was a specific lien upon the property condemned, which related back to the time when the attachment was laid." Cockey v. Milne's Lessee, 16 Md. 200, 206. With respect to an attack such as is here made on the regularity of the proceedings as affecting Grove's title, it is said in Ranoul v. Griffie, 3 Md. 54, 60: "The principle is well settled, that the judgment of a court of competent jurisdiction, when coming incidentally in...
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