Williams v. Jones

• Citation: 38 Md. 555
• Parties: GEORGE H. WILLIAMS, Garnishee of MILTON A. JONES v. JOSHUA JONES.
• Decision Date: 10 July 1873
• Court: Maryland Court of Appeals

38 Md. 555

GEORGE H. WILLIAMS, Garnishee of MILTON A. JONES v. JOSHUA JONES.

Court of Appeals of Maryland

July 10, 1873

APPEAL from the Superior Court of Baltimore City.

On the 20th of December, 1871, an attachment on warrant was sued out by the appellee against Milton A. Jones, a non-resident, and laid in the hands of George H. Williams, trustee in the case of Jones, et al. vs. Stockett, et al., pending in the Circuit Court of Baltimore City. The declaration alleged that Milton A. Jones, together with a certain William E Jones, and Elizabeth Ann Jones, by a joint and several bond dated the 23rd of December, 1846, promised to pay the plaintiff the sum of $1500, and that no part thereof had been paid. The cause of action was the following bond:

"Know all men by these presents, that we, Milton A. Jones, Wm. E Jones and Elizabeth Ann Jones, are held and firmly bound unto Joshua Jones in the sum of fifteen hundred dollars current money, to be paid to the above named Joshua Jones, or to his certain attorney, executors, administrators, heirs or assigns; to which payment, well and truly to be made and done, we bind ourselves and each of us, our and each of our heirs, executors, administrators or assigns, firmly by these presents, sealed with our seals, and dated this 23rd day of December, one thousand eight hundred and forty-six.

(Stamp, 75 cts.)

The condition of the above bond is such, that should the interest now due upon certain trust funds now in suit in the Court of Chancery, they being part of the fund left by Larkin Shipley, of Anne Arundel County, in the State of Maryland, by will bearing date 19th day of February, 1822, to Ann Shipley, now Ann Jones, and wife of the above named Joshua Jones, and held by Henry Wayman and Richard G. Stockett as trustees, according to the will of the aforesaid Larkin Shipley, should not be sufficient to refund to the above named Joshua Jones the amount of _______ dollars, which he has paid or become liable for the debts of the above named Ann Jones, with interest thereon, then this obligation to be in force, and the whole sum of the above bond or obligation, or so much thereof as shall be sufficient to make up the above amount of fifteen hundred dolls., in connection with the interest of the above mentioned trust fund now due; but should the above mentioned interest be sufficient to pay the sums paid with interest by the aforesaid Joshua Jones, for debts of the above mentioned Ann Jones, then this bond or obligation to be null and void and of no effect.

In testimony of the foregoing bond or obligation, we have this 23rd day of December, one thousand eight hundred and forty-six, set our hands and seals.

MILTON A. JONES, [Seal.]

WM. E. JONES, [Seal.]

ELIZABETH A. JONES, [Seal.]

Signed, sealed and delivered, in presence of--

Chas. H. Pitts."

The affidavit stated the debt to be $214.00, with interest thereon from the 20th of October, 1852. The defendant was returned " non est. " The garnishee pleaded limitations and nulla bona. The execution of the bond was admitted, and it was agreed that the plaintiff should not be required to prove the breach of the condition thereof; but that if he were entitled to recover at all, and the fund was liable to condemnation in the action, the amount properly recoverable would be $214, with interest thereon from the 20th of October, 1852. Larkin Shipley of Anne Arundel County, left to his niece, Ann Shipley, the wife of the plaintiff, a legacy of $7000, the interest of which was to be enjoyed by her during her natural life, and upon her death the principal was to be equally divided among her children.

Exception.--The plaintiff at the trial, offered in evidence, the bond, the cause of action, and the admission in respect to the breach of its condition, & c., and proved that the defendant, Milton A. Jones, was a son, by a former marriage, of Ann Jones, the wife of the plaintiff, and that she died in 1869; and in order to show funds in the hands of the garnishee the plaintiff offered in evidence the auditor's account filed on the 23rd December, 1870, in the case of Jones, et al. vs. Stockett, et al., distributing the legacy which had been left to Mrs. Jones by Larkin Shipley, among those entitled to the same. This account of the auditor, which had been finally ratified on the 7th of January, 1871, showed that the entire share, or portion of Milton A. Jones, the defendant, in the fund, was audited to Frederick B. Snyder, his assignee. The plaintiff then further offered in evidence the assignment from Milton A. Jones, to Frederick B. Snyder, filed in the Equity case, and also an order passed by the Circuit Court of Baltimore City, on the 28th of May, 1872, directing the garnishee to pay over to said Snyder, as the assignee of Milton A. Jones, the sums audited to him by the said auditor's account.

The garnishee then offered in evidence a petition filed by the plaintiff in the said Equity case, on the 23rd July, 1870, by which he sought to obtain out of the fund to be distributed in that case, payment of the money which he claimed to be due on the bond, the cause of action in this case. The garnishee, also offered in evidence a general demurrer to said petition, by Milton A. Jones, and the order of the 22nd November, 1871, sustaining the demurrer; also a petition of Frederick B. Snyder, filed 5th December, 1871, asking that the trustee, (the garnishee) should be ordered to pay to the petitioner the amount which had been audited to him under the assignment from Milton A. Jones. On this petition the order of the 28th of May, 1872, offered in evidence by the plaintiff, was passed, directing the trustee to pay to the petitioner the sums audited to him as assignee of Milton A. Jones.

The plaintiff offered four prayers, which were granted; the third and fourth, relating to limitations, were by agreement of counsel omitted from the record, the first and second are as follows:

1. The execution by the defendant of the bond which constitutes the cause of action in this case, the breach of the condition of the bond, and the non-residence of the defendant being admitted, and the quantum of damages being settled by the agreement of the parties, the said bond is such an instrument as will sustain an attachment on warrant, under the provisions of Article 10 of the Code of Public General Laws.

2. If the jury find that the garnishee has in his hands funds which, but for the assignment from the defendant to Frederick B. Snyder, would belong to the defendant, then the said assignment does not protect the said funds from attachment, except as to the amount of the principal and interest of the debt therein mentioned.

The garnishee offered six prayers, all of which were refused; the third, relating to limitations, is omitted, the others are as follows:

1. If the jury find the filing in the case of Jones vs. Stockett, in the Circuit Court of Baltimore city, of the petition of the plaintiff, offered in evidence, filed on the 23rd of July, 1870, and the filing in the same cause of the petition of the claimant, Frederick B. Snyder, on the 5th day of December, 1871; and shall further find that the statement of the auditor's account, filed in said cause on the 23d of December, 1870, and the passage of the order nisi and final order thereon; and shall further find the passage of the order of said Court, filed on the 28th of May, 1872, then the plaintiff is not entitled to recover in this action.

2. If the jury find the execution of the assignment from the defendant, Milton A. Jones, to the claimant, Frederick B. Snyder, then the plaintiff is not entitled to recover.

4. That the plaintiff cannot maintain the attachment upon the cause of action declared upon in this case.

5. That there is a variance between the claim made by the affidavit and warrant, and the short note in the cause, and the plaintiff cannot recover in the action.

6. That there is a variance between the short note and the cause of action in the cause, and there can be no recovery.

The garnishee excepted to the refusal of the Court to grant his first, second, fourth, fifth and sixth prayers, and to the granting of the first and second prayers of the plaintiff.

The jury rendered a verdict for the plaintiff for $343.19, and judgment of condemnation against the garnishee was entered for the amount, with interest and costs. The garnishee appealed.

The cause was argued before BARTOL, C.J., STEWART, BOWIE, BRENT, MILLER, ALVEY and ROBINSON, J.

William A. Fisher and Charles Marshall, for the appellant.

The proposition asserted in the first prayer of the garnishee is that when an attachment is laid in the hands of a trustee acting under the order of a Court of Equity, condemnation cannot be had against the trustee as garnishee, in order to give the fund a different direction from that given to it by the final order.

This proposition, applicable to all cases, is further enforced in this case by the fact, that the plaintiff was a party to the distribution proceedings, and could have appealed and taken any other course to which he might have been advised.

If the attachment is to have any effect when laid in the hands of the trustee before the final ratification of an account, it can only bind any fund which may be finally distributed to the defendant, and no modification of the proceedings will be made, even in the equity case, "for the benefit of the attaching creditor." McPherson vs. Snowden, 19 Md., 233.

Unless therefore, the plaintiff shows that there has been a final account, and something has been audited to the defendant, he cannot recover. The proof here not only shows nothing of the kind, but it appears that the fund, of which condemnation is sought, has been distributed to...