Freidenrich v. Moore ex rel. Campbell

24 Md. 295 | Md. | 1866

Bartol, J.,

delivered the opinion of this Court.

A writ of attachment or warrant was issued in this case, on the 22nd day of February, 1859, at the suit of Robert and Charles Moore, (the appellees,) for the purpose of recovering the sum of $4,546 54, alleged to be due them' by L. H. Springer and Charles Fries, non-residents, the writ was on the same day ‘ ‘ laid in the hands of the appellants trading in Baltimore under the name of Springer, Freidenrich & Co.,” and was returnable to the ensuing May Term of the Superior Court. At that term the writ having been returned, and the garnishees not appearing, a judgment of condemnation nisi was entered against them on the 9th of May. No other proceedings were had until the 27th day of February, 1860, when Mr. Campbell appeared for the garnishees and filed a motion to strike out the judgment, but assigned no cause in support of the motion ; afterwards, on the 8th day of March, 1860, the same motion was renewed on the part of the garnishees, asking that the judgment be stricken out and set aside, ‘ ‘ for fraud and deceit, surprise and irregularity in obtaining the same.” Accompanying this motion were the affidavits of Henry Bookman, Frederick Krager, Abraham Freidenrich and Moses H. Springer.

On the 10th day of March, 1860, motions were entered, one on behalf of the garnishees and the other on behalf of the defendants, “to quash the attachment because the accounts on which the defendants are alleged to be indebted to the plaintiffs, were not produced, and filed with the affidavit made by plaintiffs before the Justice who issued the warrant of attachment.” On the 13th day of March the Court passed an order suspending execution upon the judgment till the further order of the Court, provided a bond should be filed by the garnishees as prescribed. The bond was filed accordingly. Thereafter a number of affidavits were filed on behalf of the garnishees, and of the plaintiffs, touching the alleged fraud and surprise in obtaining the judgment; and on the 16th day of June, 1862, the Superior Court overruled the motions to strike out the judgment, and to quash the attachment, from which decision this appeal was taken.

It appears from the record that the objections to the judgment rest upon two grounds :

1st. Fraud, deceit and surprise alleged to have been practiced by the appellees, in obtaining the same.

2nd. Irregularity in the judgment itself.

The first is to be determined by the testimony. This has been carefully examined, and the conclusion we have' reached, on this branch of the case, is that the allegation of the appellants, in this respect, is not established by the evidence.

It conclusively appears that the attachment was served on the appellants at their store on the 22nd day of February, 1859. This fact is established by the Sheriff’s return, and is corroborated by other proof. It appears that when the Sheriff went to serve the writ, the appellants, Faust Freidenrich and Moses H. Springer were at the store of the appellees, and their book-keeper, Bookman, went there to inform them of the Sheriff’s visit. They were alarmed by the intelligence, and they state in their affidavits that Robert Moore informed them that it was an attachment he had laid in their hands against Springer & Fries, “but that it did not amount to anything,” and Faust Freidenrich states that Moore further said to him that he (Moore) “ only did it to effect a settlement.” Robert Moore in his affidavit expressly contradicts this statement, and swears that what he said to them was ‘ ‘ that they might not be so much alarmed about it, that there was time enough for them to attend to it, but that notwithstanding, they both left his store,” and he states, “that it is not true that upon that or any other occasion he told them or either of them that the writ of attachment wag of no consequence, or that he had caused the same to be issued to effect a settlement with Springer & Fries.”

Faust Freidenrich further states in his affidavit that, in April, 1859, he asked Robert Moore if it was necessary to employ a lawyer, and that Moore told him that he did not want them to employ a lawyer in the case, that the-attachment would not be pushed, and that all he wanted was, not to make the garnishees pay the money, but to effect a settlement through their influence with Springer & Fries.” This statement stands on the testimony of Faust Freidenrich alone, and is positively contradicted by the affidavit of Robert Moore.

The witness, Frederick Krager, states that in, August, 1859, Robert Moore asked Moses H. Springer to go before the Commissioner in Baltimore to testify in a suit of the appellee’s against Springer & Fries, then being prosecuted in Cincinnati, which Springer at first declined to do ; but. Moore told Mm if lie would go before tlie Commissioner and testify, the case here (that is this attachment case,) should be settled. Moses H. Springer states the same thing. As to this evidence, it may be remarked that it is contradicted by Robert Moore’s testimony, and is inconsistent with the facts established by other proof showing that Springer was a reluctant and unwilling witness, at first refusing altogether to appear before the Commissioner, and when testifying, refusing to produce tlie books of account between his firm and Springer & Fries, called for during the examination, and employing counsel to resist the demand for the books. Besides the statement that in August, 1859, Robert Moore proposed to settle this attachment case on condition that Springer would testify before the Commissioner is inconsistent with the other statements that in February, when the writ was served, and in April, Moore had told them the attachment amounted to nothing, and would not be pushed. In the affidavits both of Krager and Springer, they state that Springer urged as his objection to going before the Commissioner that the case was being tried here, (in Baltimore) which shows that he knew this attachment suit had not been abandoned.

It is possible that the garnishees were ignorant of the necessity of appearing in Court and contesting the attachment. In one of the affidavits it is stated that they said, long afterwards, they thought there would be some advertisement on the subject in the newspapers, and in this way their failure to appear and defend sooner, if they intended to do so, may be susceptible of explanation. But that is not sufficient ground for striking out the judgment. To justify such a proceeding it is necessary that clear and convincing proof should be given that they were prevented from making their defense by deceit practiced upon them by the appellees ; lulling them into the belief that the attachment had been or would be abandoned. The proof on this subject is not in our opinion sufficient to warrant the Court in so declaring. There is much conflict in the statements of the parties which it is impossible to reconcile ; nor do we deem it necessary to discuss in this opinion all the testimony in the cause. We have stated our conclusion from the whole evidence.

It must not be lost sight of that the process was regularly served upon the garnishees by the Sheriff; at the return of the' writ, the judgment complained of was entered in open Court, and stood upon the public records as notice to them that unless they appeared and made defence during the term, the jtídgment would become absolute. If they were ignorant of the law and for that reason failed to appear, it is their misfortune, from the consequences of which this Court cannot relieve them. To strike out a solemn judgment on such grounds would be establishing a principle most dangerous in its consequences and having no precedent to support it. See Peters vs. League, 13 Md. Rep., 58, and Windwart vs. Allen, Ibid, 196.

The other ground for the motion is the alleged irregularity in entering the judgment of condemnation. This is .supposed to consist in the failure to produce before the Justice, who issued the warrant, such an account as was required by the Act of 1795, ch. 56, and its supplements.

An account was produced, which if it were material to pass upon the question, we are inclined to think would be held to be a sufficient account under the Act of Assembly even if the objection had been made in time. See Dawson vs. Brown, 12 G. & J., 53, 59. Lee & Brewster vs. Tinges, 7 Md. Rep., 215, 229. Upon that question, however, it is not material for us to express any conclusive opinion, because even if the account produced were obnoxious to the objection urged by the appellants, the objection was not made in time. Sherwood vs. Mohler, 14 Md. Rep., 564. See, also, 13 Md. Rep., 196. 17 Md. Rep., 195. Id., 501. This would not he such an irregularity as existed in Graff vs. Gambrill, 18 Md. Rep., 364, where the judgment of condemnation was entered before the return of the writ.

(Decided March 22nd, 1866.)

Other supposed irregularities in the judgment were suggested by tbe appellants in tbeir argument in this Court. These it was contended consisted in the defective service and return of the writ by the Sheriff; and in the entry of the judgment against the garnishees without any judicial ascertainment of the fact that they had in their hands goods, chattels and credits of the defendants to the amount of the plaintiffs’ claim or to any amount. The return of the Sheriff was that he had laid the attachment in the hands of the garnishees, &c., without stating to what amount. But such a return is sufficient; the garnishees were informed by the service of the writ, what was the amount of the plaintiffs’ demand, and it is not usual or necessary for the Sheriff to state iu his return for what amount he has laid the attachment in the garnishees’ hands, although that form has sometimes been observed.

A failure of the garnishees to appear entitled the plaintiffs to the judgment nisi, which in such case is a motion of course, and no inquisition is necessary. Evans’ Practice, 87, 99. 13 Md. Rep., 58, Id., 196. 14 Md. Rep., 564. 17 Md. Rep., 195, Id., 501.

A reference to these authorities will show that the judgment was entered regularly in accordance with the practice. The judgment of the Superior Court on the motions will therefore he affirmed.

Judgment affirmed.