Post v. Bowen

35 Md. 232 | Md. | 1872

Bartol, C. J.,

delivered the opinion of the Court.

The appellants obtained a judgment against John T. Turner and Henry T. Turner in “Baltimore City Court,” at September Term, 1868. A writ of fieri faeias having been issued thereon and returned nulla bona by the sheriff of Baltimore city, a writ of attachment was issued thereon by the same Court, directed to the sheriff of Calvert county on the 20th day of January, 1869.

The case was regularly docketed against John T. Turner and Henry T. Turner on the 24th of January, 1869, for the February Term, 1869, of the Circuit Court for Calvert county, and the writ of attachment placed in the sheriff’s hands, who returned the same to the February Term, 1869, as follows:

“ Laid in the hands of Thomas Bowen January 30th, 1869, for debt, interest and costs, and garnishee summoned.” The garnishee did not appear, and the case against him was continued to the May Term, 1869 ; the garnishee not appearing at that Term, a judgment of condemnation was entered against him; and on the 14th of June following, ajfieri faeias was issued thereon and returned to the July Term next following, "levied as per schedule and sold for $50.”

At May Term, 1871, the garnishee appeared by attorney, and moved to strike out the judgment, assigning in support of the motion two reasons:

1st. Because the writ of attachment was made returnable to Baltimore City Court, and not to the Circuit Court for Calvert county, and therefore the latter Court had no jurisdiction to render judgment of condemnation.

2d. Because the judgment of condemnation was erroneously entered for an amount greater than that claimed in the writ.

Whereupon a remittitur was filed by the plaintiffs’ attorneys for the sum of $173, that being the excess of the judgment over the amount claimed in the writ of attachment.

There is no doubt that the remittitur was a full answer to the objection based upon the error in the amount for which the judgment had been entered, even if that objection had been made in due time, such errors may always be cured in that way, and when so corrected, they furnish no ground for impeaching the judgment either on writ of error, appeal or by motion. It is the uniform practice for the Court to allow a party to release the excess, and the judgment stands for the balance.

The first reason assigned in support of the motion, is based upon the language of the writ of attachment, which commands the Sheriff of Calvert county, to whom it is directed to return the same, “ to the said Court to be held at the Court Souse, in Prince Frederick, on the first Monday of February next.” And it is argued that because Baltimore City Court only had been before mentioned in the writ, the words “ the said Court ” necessarily imported Baltimore City Court; and that this error rendered the whole of the subsequent proceedings void; that the judgment of, condemnation was rendered by a Court having no jurisdiction of the case, and ought to be set aside on motion made at any time thereafter.

To this proposition we cannot give our assent, the error in the form of the writ was a more misprision by the, clerk, or at most only an irregularity, not going to defeat the jurisdiction, and does not render the proceedings in the Circuit Court coram non judiee.

The record shows that the case was regularly placed upon the docket of that Court, the writ was served upon the garnishee, and he was actually summoned to appear in that Court; and the writ was returned to the Circuit Court for Calvert county, which took cognizance of the case and acted upon it, without its attention being called to the clerical error in the form of the writ.

If the garnishee, in obedience to the summons, had appeared and made his objection in due time, he would have been heard, and if the defect alleged had been considered really material or substantial, the writ would have been quashed. But having failed to appear and make his objection, until two years had elapsed after the judgment had been rendered, his motion comes too late. Laches and unreasonable delay are always fatal to motions of this character. Kemp vs. Cook, 18 Md., 130; Dorsey vs. Kyle, 30 Md., 512.

(Decided 16th February, 1872.)

It has been'argued for the appellee, that the judgment of condemnation was irregular and unauthorized, because there was no inquisition to ascertain the amount of the garnishee’s liability. But in Friedenrich vs. Moore, 24 Md., 296, it was decided that the failure of the garnishee to appear entitled the plaintiffs to the judgment nisi, which in such case, is a motion of course, and no inquisition is necessary. On this point we refer also to 13 Md., 58; 13 Md., 196; 14 Md., 564; 17 Md., 195; 17 Md., 501, and Evans’ Practice, 87, 99.

Judgment reversed.