Morris L. Hollowell & Co. v. Miller

17 Md. 305 | Md. | 1861

Bartol, J.,

delivered the opinion of this court.

The appellants, on the 18th of October 1856, recovered a judgment in the circuit court for Cecil county, against one Samuel H. Miller, for $312.53, with interest and costs, and afterwards, on the 25th of January 1858, they issued an attachment, by way of execution thereon, which was returned by the sheriif, stating that he had ‘‘attached credits” in the hands of certain named persons, whom he had summoned as garnishees. As a part of his return, the sheriff filed copies of several judgments rendered by a justice of the peace in favor of the defendant, Samuel II. Miller, against the garnishees. At the return of the attachment, Samuel Miller, the appellee, appeared and claimed the credits so attached as belonging to him, in virtue of an alleged assignment madé to him before the attachment issued, and filed his claim in writing, verified by affidavit, and moved to quash the attachment.

(Decided Oct. 4th, 1861.)

In answer to this claim, the appellants filed three pleas, in substance denying that any assignment had been made, and alleging that if any such assignment had been made, it was without consideration, and in fraud of the rights of the creditors of Samuel H. Miller.

The circuit court, by its order dated the 27th of November 1858, quashed the attachment, and from that order this appeal was taken.

In the order it is stated, that the same was passed “upon hearing the arguments of counsel, and due consideration of the same, and the evidence in the cause.”

The record does not contain the evidence upon which the circuit court acted, and, in the condition in which it comes before us, there is no error disclosed, upon which this court can be called on to reverse the judgment below. The evidence upon which that court acted, ought to be set out in the record, or in a bill of exceptions, in order that the appellate court may pass upon it; or if, as alleged by the appellant, the circuit court sustained the motion without any proof to support it, the record ought so to state.

“A judgment below, coming up by appeal, is prima facie correct, and cannot be reversed by the appellate court, unless they are convinced it is erroneous.” 6 Md. Rep., 375.

“In the absence of testimony to the contrary, we must intend that the court acted properly.” 4 Md. Rep., 278. 14 Md. Rep., 120.

Judgment affirmed.