First National Bank v. Weckler

52 Md. 30 | Md. | 1879

Miller, J.,

delivered the opinion of the Court.

It appears from the records in these cases that Susan Weckler, on the 10th of March, 1876, recovered a judgment in the Circuit Court for Washington County, against John D. Newcomer for $973.66 with interest and costs, and on that judgment she caused to be issued out of the same Court an attachment by way of execution. The attachment was issued on the 30th of June, 1876, and Newcomer being in the employ of the First National Bank of Hagerstown at a salary of $1000 per annum, the writ was on the same day laid in the hands of the bank for the purpose of reaching this salary. The garnishee appeared and pleaded first that there was no such judgment as the writ of attachment sets out. The plaintiff then moved for leave to amend the writ by striking out the word “March” and inserting “February.” From this we understand, that the writ as issued had erroneously recited, that the judgment had been recovered at a Court begun and held on the second Monday of JfarcA instead of the second Monday of February. The Court treated this as a mere clerical error, granted the leave to amend and the error was corrected. The writ having been issued out of the same Court in which the judgment was recovered and remained of record, this error of date in the recital of the writ was manifestly a mere clerical error, and was apparent on the records of the Court. In such case it was not only competent to, but the duty of the Court to order the amendment to be made. The decision in McCoy, Garn. of Dewey vs. Boyle, 10 Md., 391, is directly in point, and that case is not in conflict with anything decided in Halley, Exc’r of Kulp vs. Jackson, et al., 48 Md., 254. After this it appears from the docket entries that the plea of nul tiel record was renewed, and that on this plea the Court gave judgment for the plaintiff. To the judgment of the Court on this plea, whether it was given before or after the writ was amended, no exception was taken by the defendant. The result of this is that the Court’s action on this plea is not before us for review, for it is well settled that if a party intends to have the decision of the Court below on a plea of nul tiel record, reviewed in this Court, he must tender a bill of exceptions setting forth the record offered in evidence under the plea, the ruling of the Court with respect to it, and the exception thereto. McKnew vs. Duvall, 45 Md., 506.

The garnishee then moved to quash the attachment upon the ground that the writ, as appears hv the return of the sheriff, had not been made known to Newcomer, the defendant in the judgment. If this objection was founded upon the case of Johnson vs. Lemmon, 31 Md., 336, where it was held that the writ was defective because it did not contain a clause of scire facias as to the defendant in the judgment, the answer is that in that case the attachment was issued more than three years after the date of the judgment, and it is only in such cases that a clause of this character and notice .to the defendant in the judgment is required by the Act of 1862, ch. 262. That such a clause is not necessary where an attachment by way of execution is issued within three years from the date of the judgment was expressly decided in Anderson vs. Graff, 41 Md., 606. Whether since the Act of 1814, ch. 320, it is necessary to insert such a clause in any case where the attachment is issued within twelve years from the date of the judgment, may he a matter of doubt, and is a question we do not propose now to decide. We are not aware of any statutory provision or of any decision which requires such a clause in the writ, or such notice to he given to the defendant in the judgment, in a case like the present, where the attachment was issued within three years from the date of ■the judgment, and the motion to quash was properly overruled.

The attempt has been made to bring up the questions which we have thus considered and decided, by a separate ■appeal and a separate record, (which is No. 1 on the General Docket) but as no hill of exceptions was taken to the decision of the Court upon the plea of nul tiel record, •and as it is clear that no appeal lies from a judgment refusing to quash an attachment, (Baldwin vs. Wright & Kent, 3 Gill, 341; Mitchell vs. Chesnut, et al., 31 Md., 521,) it is plain that this appeal must be dismissed, and it is so ■ordered.

Appeal dismissed.

(Decided 19th June, 1879.)

In the next record it appears that the case was tried before a jury upon issue joined on the plea of nulla bona. The proof shows that on the 30th of June, 1816, when the attachment was laid, nothing was due to Newcomer by the bank on account of his salary, but between that time and the day of trial, the 18th of May, 1818, over $1800 would have been due to him if the bank had not paid his salary monthly; that in consequence of this monthly payment there was from the laying of the attachment to the day of trial not more than $83.33|-, due to him at any one time. Upon this proof prayers were ■offered on both sides. Those on the part of the plaintiff •assert the proposition, that as the judgment on which the •attachment issued exceeded the sum of $100, all the money which became due and payable -by the hank to Newcomer on account of his salary from the time the attachment was laid to the day of trial, (less the sum of $100, which is by law exempted,) was liable to and affected by the attachment, and the fact that his salary •since the laying of the attachment has been paid him by the hank, is no bar to a recovery. Those of the garnishee assert that the attachment affects only such wages or salary in excess of $100, as were actually due him at the time it. was laid. The two Judges before whom the case was tried being divided in opinion, the prayers on both sides were-rejected and each party took an exception. The verdict, was in favor of the plain tiff, but for a sum which evidently did not include any part of the salary, and both parties, have appealed.

The question thus presented is of importance, and involves the construction and effect of the Act of 1874, ch. 45. It had long been the settled construction of our attachment laws, that the attachment fastened upon and subjected to condemnation not only all the credits or property of the debtor in the hands of the garnishee at the time it was laid, but, also, all such credits or property as might afterwards come to his hands down to the time of' trial. All wages or hire of laborers or employes in the hands of their employers were like all other credits, unquestionably within the operation of these laws and this construction of them. This was supposed by the Legislature, to operate harshly upon such debtor parties, and by the Act of 1852, ch. 340, entitled “' An Act to limit attachment cases where laid in the hands of employers,” and afterwards by the amendatory Act of 1854, ch. 23,. both of which are embodied in sec. 36, Art. 10, of the-Code, it was provided that “ no attachment of the wages, or hire, of any laborer or employe, in the hands of the employers, whether private individuals or bodies corporate, shall affect any salary or wages of the debtor lohich are not actually due at the date of the attachment, and the sum of ten dollars of such wages or salary which may be-due shall be exempted from attachment, whether on warrant or on judgment.” Without doubt, this legislation was in the interest and for the benefit of laborers and other employes. It prevented the operation of an attachment upon all wages that might become due after it was laid and before trial, and granted an absolute exemption to the extent of ten dollars of the wages, or hire, due at the time it was laid. So stood the law until the passage of the Act of 1814, ch. 45. By that Act, sec. 36, Art. 10, of the Code was amended and re-enacted so as to make it read that “Ho attachments upon warrant, judgment upon two non ests, or upon original process, shall issue against, he levied on, or affect the wages or hire of any laborer or employe not actually due at the date of such attachment, in the hands of the employers, whether such employers he individuals or corporations, unless the debt or judgment upon which such attachment is issued, shall, exclusive of costs, exceed the sum of one hundred dollars ; and the sum of one hundred dollars of such wages, or hire, due to any laborer or employe by any employer or corporation shall always he exempt from attachment by any process whatever.” How, when we read this law in connection with the section of the Code which it amends, the changes made are, in our opinion, these : 1st. It plainly increases the amount absolutely exempted from ten to one hundred dollars. This certainly was intended to benefit the laborers or employes. 2nd. It prohibits the issuing, as well as the levying, of an attachment to affect wages which may become due after its date, where the debt, or judgment, on which it is founded does not exceed one hundred dollars. The effect of this, in connection with the increase of the absolute exemption, is to relieve employers from the annoyance and inconvenience of having attachments on small debts and magistrates’ judgments laid in their hands, to affect the future wages of their employes. The practical result is that railroad corporations, who have a large number of persons . in their employ, are, in a great measure, relieved from the trouble of all such attachments, because, in a large majority of cases, the wages of any one of their employés are at no time, in arrear to the amount of one hundred dollars, and to give such corporations this relief is, probably, one of the objects the Legislature had in view in passing this Act. 3rd. But, if the debt, or judgment, exclusive of costs, on which an attachment is issued exceeds the sum of one hundred dollars, then the effect of the attachment to bind wages accruing due after its date, and down to the time of trial, is restored to what it was previous to any legislation on this subjeet, with the exception, that the amount of one hundred dollars of such wages is to be exempted from such effect. We are unable to give any other construction to the language of this law. The section of the Code had limited in all cases, the effect of an attachment against wages to the amount due at its date, and by the amendatory Act, the Legislature have said the same limitation shall continue “ unless the debt, or judgment, on which such attachment is issued shall, exclusive of costs, exceed the sum of one. hundred dollars.” It seems to us, that this purpose is plainly expressed. If the intent was to continue the limitation in all cases, as it had previously existed, the language just quoted was entirely unnecessary and has no meaning. Being in the law, the Courts must give to it its ordinary, natural and necessary import and meaning in the connection in which it is used. What we understand the Legislature to have declared by .this Act is, that if an employé contracts a debt exceeeding one hundred dollars, or has a judgment recovered against him for more than that sum, exclusive of costs, his creditor may issue an attachment upon it, and that attachment may be laid in the hands of his employer, and if his wages, or salary,' due at the time, or that may accrue due before the trial, are in excess of one hundred dollars, then such excess shall be affected by the attachment and shall be liable .to condemnation. That being, in our judgment, the true construction and effect of this statute, it is hardly necessary to add that if an employer, as garnishee, disregards such an attachment, and after it is laid in his hands and before trial pays over the accruing wages, or salary, in excess of one hundred dollars to the employe, he does so at his peril.

(Decided 19th June, 1879.)

Applying this construction to the case before us, it follows there was error in the rejection of the plaintiff’s first and second prayers, and for this error the judgment must be reversed and a new trial awarded. In the rejection of the opposing proposition contained in the prayers of the garnishee there was of course no error. We have not considered the third prayer of the plaintiff, in reference to money alleged to be due by the bank to Newcomer, on account of commissions on the sale of the bonds to the plaintiff, because it was not relied upon by her counsel, and in the further progress of the cause it will evidently become unimportant. Another exception was taken by the garnishee in which we find no error. The plaintiff after offering in evidence the writ of attachment offered the record of the judgment on which it was issued. This latter shows that the verdict was rendered at November Term, 1815, and that a motion for a new trial was immediately made before the judgment was entered on the verdict. This motion was not disposed of until the following February term, when it was overruled and judgment on the verdict was then rendered. The writ of attachment recites that the judgment was recovered at the February Term, and this of course was correct, because no judgment could properly have been rendered until the motion for a new trial had been disposed of. There was consequently no variance between the writ of attachment and the judgment, and no error in admitting the record of the judgment in evidence.

Judgment reversed, and

new trial awarded.