O'Connell v. Ackerman

62 Md. 337 | Md. | 1884

Robinson, J.,

delivered the opinion of the Court.

On the 14th of September, 1882, an attachment was issued at the instance of the appellant, against the goods and property of George H. H. Condon. On the same day Condon conveyed all his property to George E. Nelson and John H. Y. Ackerman, for the benefit of creditors. After the payment of releasing creditors, the surplus if any, the grantor ' reserved to himself. The deed was therefore as to creditors void on its face.

The sheriff in his return says the attachment “ was laid in the hands of John H. Y. Ackerman on the 16th day of September, 1882,” and “was also laid in the hands of George E. Nelson on the 19th day of September, 1882.”

On the return of the attachment the garnishees appeared and pleaded separately, non assumpsit on behalf of the defendant, and nulla bona on their own behalf. Separate suits were docketed against them, and the cases were thus tried before the Court, without the intervention of a jury.

This appeal is from the rulings of the Court in the case against Ackerman. The proof shows there was no money or property of any kind in his hands liable to garnishment except the sum of one thousand dollars, being the proceeds of sale of property conveyed by the deed to Nelson and himself for the benefit of Condon’s creditors. This being so, the liability of the appellee was a joint, and not a several liability, and as against him, the plaintiff in the attachment was not entitled to a separate judgment. The deed of trust was void it is true as against creditors, but it was binding on the grantor; and the grantees were not therefore separately liable as tort feasors. The money derived from the sales of the property conveyed by the deed, being in their joint possession as trustees, and their liability to the creditors being a joint and not a several liability, the attachment ought to have been laid in their hands jointly. The garnishee’s prayer was therefore properly granted.

A motion was then made by the appellant to amend the sheriff’s return, the effect of the amendment being to show that the attachment was in fact laid in the hands of Nelson and Ackerman jointly as trustees under the deed. And in support of this motion he proved by Rose-man, the deputy sheriff who served the attachment, that prior to serving the same, the plaintiff’s attorney gave him the following notice to-he served on Nelson and Ackerman, and that the same was served on them with the attachment:

(Decided 19th June, 1884.)

“Thomas O’Connell vs. George H. H. Condon. } N0. 5. In the Superior Court.

“To John H. Y. Ackerman and George E. Nelson, Esqs., Garnishees.

“Please take notice that the attachment laid in your hands in this case is intended to cover all money and properties of George H. H. Condon, in your possession or control as trustees or otherwise. * * *

Your oh’t sev’t,

Michael A. Mullin,

Sept. 16, 1882. Att’y for Thos. O’Connell.”

Now, although the sheriff’s return as originally made was construed as showing that the attachment was laid in the hands of Nelson and Ackerman separately, the proof thus offered establishes beyond question that the attachment was in fact laid in their hands as trustees, and intended to reach the money and property in their hands as trustees or otherwise. The sheriff had the right unquestionably to amend his return, so as to make it conform to the facts as they occurred, and the Court erred in overruling the motion to amend the same.

The judgment must therefore he reversed.

Judgment reversed, and new trial awarded.