Odend'hal v. Devlin

| Md. | Mar 26, 1878

Bartol, C. J.,

delivered the opinion of the Court.

This suit was instituted by the appellee to recover a debt due the plaintiff for merchandize sold to Maria T. Odend’hal a feme covert, sole trader.

The proceeding was by attachment under Art. 45, sec. 7, of the Code, and is in all respects conformable to the provisions of the statute, as construed in Brent vs. Taylor and Marks, 6 Md., 58.

No objection is made to the proceeding as in any respect informal or irregular.

The writ was laid in the hands of the appellant Sebastian, the husband of the debtor, and he was summoned as garnishee; and the first question to be considered is whether in a proceeding of this kind against the separate property of the wife, the husband can be made garnishee.

This question is raised by the demurrer to the third or additional plea, and by the third prayer of the appellant.

The positions taken by the appellant, as stated in his brief, are 1st. “In' order to entitle the plaintiff to recover against a garnishee, the defendant must be able to recover against the latter; as the plaintiff in attachment is only subrogated to the rights of the defendant, and if the defendant could not sue the garnishee at law the plaintiff cannot,” and 2nd. That as it was decided in Barton vs. Barton, 32 Md., 224, that a wife cannot sue her husband at law, it follows that in a proceeding by attachment against her separate property, the husband cannot be made garnishee.

It is the general rule that the rights of the attaching creditor to recover against the garnishee, depends upon the subsisting rights between the garnishee and the debtor in the attachment, and the test of the garnishee’s liability is that he has funds, property or credits in his hands belonging to the debtor, for which the latter would have a right to sue. In Myer, et al. vs. Liverpool, London, and Globe Ins. Co., 40 Md., 595, Bittenger & Brothers, citizens of Illinois, were debtors to the plaintiff a citizen of Maryland, and an attempt was made by the latter, to subject to the process of garnishment a debt due to Bittenger & Brothers by a foreign insurance company, upon a contract of insurance made in Illinois upon property situated in that State.

The Act of Assembly, 1868, ch. 471, sec. 211, provided “that a suit against a foreign corporation exercising franchises in this State, may be brought by a resident of this State, for any cause of action, and by a plaintiff not a resident of this State, when the cause of action has arisen or the subject of the action shall he situated in this State.”

It was held that as the Insurance Company could not, under the statute, he sued in Maryland by Bittenger & Brothers upon the contract of insurance made in Illinois, where the property insured was situated, the Company could not he held to answer as garnishee in Maryland for any liability upon the same contract of insurance. In that case we said, it is well settled that the plaintiff in attachment, as against the garnishee, is subrogated to the rights of the debtor, and can recover only by the same right, and to the same extent, as the debtor might recover if he were suing the garnishee.

This general proposition must be understood as applicable to the case then under consideration.

There are some exceptions to this general rule, as for instance if the debtor has fraudulently conveyed property to another, the grantee may be charged as garnishee, though the fraudulent grantor could not maintain a suit. So an attachment may be laid in the hands of a garnishee, before the debt owing by the latter to the .debtor in the attachment has matured. Drake on Attachment, secs. 452, 464.

It has been decided that equitable interests, which can ordinarily he enforced in a Court of equity may be attached. Campbell vs. Morris, 3 H. & McH., 535; Cecil Bank vs. Snively, 23 Md., 253.

In Barton vs. Barton before cited, it was held that a married woman cannot maintain a suit at law against her husband, because to permit such suits would be contrary to public policy, and inconsistent with the close and delicate relation existing between the parties; but it was decided in the same case, that after the death of the husband, the reason no longer applied, and a suit of the widow against the husband’s executor was maintained, for the purpose of recovering money due from the husband to the wife during coverture, with respect to her separate estate.

The reason assigned in Barton vs. Barton for the rule which prevents a wife from suing her husband at law, has no application to a case like the present. Here the suit against the husband is by a stranger, and it by no means follows that the disability of the wife to recover from her husband by a suit at law, the money or property sought to be affected by the attachment, affords any sufficient reason why he may not be made garnishee.

It is settled that the relation of debtor and creditor may exist between husband and wife, growing out of the appropriation by him of the wife’s separate estate, and is founded on an agreement by him to repay the money or property so appropriated. Edelin vs. Edelin, 11 Md., 415.

When such a debt exists, the creditor of the wife by a proceeding like the present may make the husband a garnishee, with respect thereto. The marital relations in this State have been materially changed by the Code, so far as rights of property are concerned.

The wife may be seized of the legal estate in lands, and she may hold the legal property in personalty, in her own right, no trustee being necessary, and in respect to property held to her sole and separate use, she has a right to resort to Courts of law or equity for its protection. A married woman carrying on business in her own name as a sole trader, contracts debts in respect to her business as if she were a feme sole. The remedy given to her creditors for the recovery of debts due them, by the process of attachment against her property, and credits, would be nugatory and worthless, if she could be permitted to place her funds or property in the hands of her husband, and it should be held that an attachment of this kind could not be laid in his hands, as garnishee.

We think the Superior Court did not err in sustaining the demurrer and in refusing the appellant’s third prayer.

The next question arises upon the appellant’s exception to evidence. The deeds of assignment and mortgages were, in our judgment, competent and admissible evidence for the consideration of the jury, in connection with the other testimony in the case, for the purpose of proving that separate property and funds belonging to the wife, had been placed in the hands of the garnishee, upon his promise and undertaking to repay the same, and we think the testimony of the witness, Devlin, tending to show the amount and value of the stock of goods in her store a short time before the attachment was issued, was also admissible. The credibility of the witness and the weight to be given to his evidence were questions for the jury to determine. We therefore affirm the ruling of the Court below in the first bill of exceptions.

The second bill of exceptions presents for review the ruling upon the prayers.

The prayers offered by the appellee were refused except the third and fifth. To the granting of these no objection has been made by the appellant in his argument in this Court, and we think no valid objection could be made to them. The propositions they announce are self-evident.

The first and second prayers of the appellant were granted. The third has already been considered. The fourth, fifth and sixth were based upon a supposed failure of evidence, that the garnishee was indebted to the defendant, or had any property or funds belonging to her in his hands, and asked the Court for that reason to take the case from the jury.

(Decided 26th March, 1878.)

We have carefully examined the bills of exception, there is very great conflict in the testimony’ but we are not prepared to say there was a total failure of evidence on the part of the plaintiff, and think the Superior Court committed no error in submitting the case to the jury.

Judgment affirmed.