21 Md. 575 | Md. | 1864
delivered the opinion of this Court:
. This is an appeal from an order of the Circuit Court for St. Mary’s County, quashing a writ of attachment issued out of the same Court. In the recital of the writ it is stated to be issued upon a judgment recovered in the. Superior Court of Baltimore City.
It appears by the record that on the 11th day of March 1861, a writ of fi. fa. was issued out of the Superior Court
Some objection to this proceeding was made by the appellee, in argument, on the ground that, in reviewing tbe execution, the Circuit Court had. no power to change its form, but could issue only au execution of tbe samo kind as the first; we do not concur in this view. By the 5th section of the 18th Article of the Code, the Court is expressly authorized, when an execution which has boon sent from another county, has been returned, to proceed by renewal or otherwise, in the samo man nor as if the first execution had been issued on a judgment rendered in that Court. There was no error, therefore, when the execution was renewed, in issuing a writ of attachment instead of a fieri facias.
But this section of the Code provides, “that when an execution is issued to another county than that in which the judgment has been rendered, the clerk shall send “a copy of the docket entries,” “upon which the Court may proceed by renewal err otherwise, ’ ’ &c. The copy of the docket entries is essential to inform the Court, having jurisdiction of the writ, that the judgment, upon which it was issued, has been rendered, and remains unsatisfied. In this case the copy of the docket entries sent to the Court of St. Mary’s County, with the writ of fieri facias, is as follows:
“Romulus R. Griffith, and ¡fiomulus R. Griffith, Jun’r, vs. John W. Hail and John S. Lynch. — In the Superior Court of Baltimore City, May Term 1859; action, &c. — 26 May 1859, jury sworn, and samo day imfulsition for plain*578 tiff for $2511.15, with int. 26 May 1859, and costs. Pltffs. costs, $18.52. 8th March 1861, fi. fa. issued to March rule day, nulla tona. 11th March 1861, fi. fa., after nulla tona, with short copy of judgment issued to St. Mary’s County.”
To this is appended the official certificate of th.e clerk with the seal of. his office.
From these docket entries it does not appeár that any judgment was ever rendered in the cause by the Superior Court. There is no entry of any interlocutory judgment, before the inquisition; nor was there any final judgment of the,Court rendered upon the inquisition of the jury, as is required by Art. 75, sec. 62 of the Code.
Upon this state of the record it is manifest, that the original fieri' facias was improvidently issued. And it appearing that the writ of attachment was issued, without any judgment appearing upon the copy of the docket entries upon which it could be based, the writ was in our opinion properly quashed.
Judgment affirmed.
