Albert v. Albert

| Md. | Jan 12, 1894

Briscoe, J.,

delivered the opinion of the Court.

The appeal in this case is from an order of the Superior Court of Baltimore City, overruling a motion to strike out an alleged unauthorized appearance by attorney for the garnishee in an attachment suit, and to strike out certain pleas filed in the name of the garnishee on his behalf and that of the non-resident defendant.

By the fourteenth section of .Article nine of the Code-of Public General Laws it is provided that the garnishee-in every attachment issued in pursuance of the preceding sections may plead, in behalf of the defendant, any plea or pleas which the defendant might or could plead if the-summons had been served upon him, and he had appeared.

There can be no doubt that a non-resident has the right to appear to the action, and defend the same by subjecting himself to the jurisdiction of the Court.

And under the statute the garnishee can plead in behalf of the defendant any plea which he might or could plead, if he had appeared. In the case of Potomac Steamboat Co., et al. vs. Clyde, 51 Md., 178, where a nonresident defendant appeared by attorney for the purpose of moving that the judgment of condemnation be stricken out, and the execution thereon quashed, it was decided that there could be no doubt of the legal right of the defendant to appear for that purpose in the attachment case, without thereby being within the jurisdiction of the Court in respect to the suit against him personally. There was no appearance in that case to the action of assumpsit, nor a plea to the merits of the cause, which could he construed as a submission to the jurisdiction of the Court.

In the case of Greenbury B. Wilson vs. Greenbury B. Wilson, Garnishee of Samuel M. Tinsley and John A. Keedy, 8 Gill, 192, an attachment was issued by the plaintiff, and laid in his own hands as garnishee. There was an appearance to the capias by the garnishee, and a plea of non-assumpsit and nulla bo'na, upon which issues were joined. But in that case there seems to have been a voluntary appearance, and no objection to either the appearance or the pleas. The case of Harding vs. Hull and Tyson, Garnishees of Boyle, 5 H. & J., 478, relied on by the appellee, was where an attachment had been laid in the hands of Hull and Tyson wdio appeared by counsel, and pleaded nulla bona, to which there was a general replication and issue joined. At the trial, the plaintiff read in evidence certain written certificates, which were admitted by the garnishees’ counsel to be in their handwriting, stating that at the time of laying the attachment in their hands they had funds belonging to Boyle, and that they never authorized any attorney to appear for them to contest the same. The plaintiff thereupon prayed the Court to strike out the appearance by counsel, which was refused by the Court. There was no opinion in this case filed by the Court, stating the grounds of its conclusion, but it bears no analogy to the case now under consideration. In Harding vs. Hull, supra, the garnishees had-not pleaded non-assumpsit for the defendant, but only nulla bona for themselves, and the motion to strike out was not made by the garnishees, but by the plaintiff.

The case now under consideration is somewhat anomalous in its character, and different from the adjudicated cases. The facts are these: On the 8th of April, 1892, Augustus Albert, a resident of Baltimore City, sued out a writ of attachment against Edward Lauterbach, a nonresident of the State, and caused it to be laid in his own hands as garnishee. On the 25th of April, 1892, Messrs. John P. Poe and John O. Rose, two members of the Baltimore bar, entered their appearance on behalf of the garnishee, and filed pleas of non-assumpsit and nulla bona. Shortly afterwards, Albert, as plaintiff and garnishee, filed a petition asking to have the appearance for him as garnishee and the pleas filed in his name stricken out, as unauthorized, and as a wrongful invasion of his right to be represented by counsel of his own selection. This motion was overruled. Now, it is well settled that a garnishee stands, in all respects, in a situation exactly similar to that of a defendant debtor. He may contest the claim made against him, but if he does so he is liable to costs. He may not only defend his own interest as a mere neutral in the controversy between the plaintiff and the defendant, but he may assume the character of an ally of the defendant. He is allowed to plead and defend his rights, for him and in his behalf. Wilson vs. Starr, 1 H. & J., 491. But, if he contests the plaintiff’s right to recover, the reason and justice of the case require that he shall be chargeable with costs. Chase vs. Manhardt, 1 Bland, 344, and cases there cited. It is insisted, upon the part of the appellant, that while the garnishee, under the statute “may plead in behalf of the defendant,” &c., yet such pleading is optional with him, and cannot be had without his authority and against his consent. And in this view we all concur. It has been the established practice in this State that an attorney cannot enter an appearance and claim to be entitled to the usual appearance fee, unless he has been employed, or his services have been accepted. Neighbors, et al. vs. Maulsby, 41 Md., 480. In the case of Kelso vs. Stigar, et al., 75 Md., 405, this Court by Chief Justice Alvey says, that unless there had been fraud or imposition practiced, or the party himself, had made objection to the use of his name, the Court will not assume that the attorney bringing the suit had acted without authority.

Manifestly, therefore, where, as in the case at bar, the party himself makes objection to the use of his name, the motion to strike out should prevail.

But it is urged upon the part of the appellee that to sustain the contention of the appellant would enable a party, where he is both plaintiff and defendant, to control both sides of a litigation, and in a controversy, the object of which is to subject a third person’s property to the claim of the plaintiff.

Ordinarily, and as a general rule, an action at law cannot be maintained where the same person is one of the plaintiffs, and is also sole or one of several defendants. But there is no hardship or injustice imposed on the non-resident from the view we take of the case at bar. The non-resident defendant has a right to appear, and upon his appearance, lias a right to plead for himself and is not affected by the pleas put in for him by the garnishee. Spear, et al. vs. Griffin, Garn., 23 Md., 418.

He is deprived of no right, and, like other suitors, is simply required to submit to the jurisdiction of the Court before lie can avail himself of its protection. It would be at variance with every rule of sound pleading, to permit him to interpose a plea to the merits of the action, without sirbmitting to the jurisdiction of the Court. To hold otherwise would defeat the very object and policy of our attachment laws, which are intended for the benefit and protection of our citizens. Practically, it would enable a non-resident defendant, to appear and defend his suit, through an unwilling and protesting garnishee, by a plea to the merits of the action, without subjecting himself to the Court’s jurisdiction.

(Decided 12th January, 1894.)

The great purposes of our attachment laws, said this Court in Risewick vs. Davis, Garn., 19 Md., 83, are, by seizing the property of a debtor to compel his appearance to answer the demand of the plaintiff when, from non-residence or flight, he is beyond the process of our judicial tribunal, and, on failure of appearance, to apply such property to the just end of satisfying his debts.

We know of no rule of pleading or legal principle that would sustain the position contended for by the appellee. The fact that the attachment is laid in the plaintiff’s own hands does not affect the case. A garnishee is not a party to the action in the sense that he is required to make defence as between plaintiff and defendant. There is no statute in our State requiring him to interpose a defence, and to do so subjects him to the expense of a trial, and the risk of a judgment against himself for costs.

So far as the motion to dismiss is concerned, we have this to say, that the Code, sec 2, Art. 5, provides, that from any judgment or determination of any Court of law, in any civil suit or action * * * * any party may appeal to the Court of Appeals.

We think the order of the Court below is such a determination of the rights of the party as entitles the appellant to an appeal.

For the reasons we have assigned, we reverse the judgment below.

Judgment reversed.

Bryan, J., dissented.