191 A. 244 | Md. | 1937
The equitable plaintiff, Charles E. Grove, appellee, brought suit in the name of the State, for his use, in Howard County, against Joseph P. Rowan, principal, and Frank G. Haller and Anna Haller, his wife, sureties on replevin bonds which Rowan had filed in a suit against Grove in Prince George's County.
The declaration says that on May 23rd, 1933, Joseph Rowan had issued, out of the Circuit Court for Prince George's County, a writ of replevin for a certain race horse named "Flying Max," tackle and other race horse equipment, then in possession of Charles E. Grove, and gave bond to the State of Maryland in the sum of $730, and on June 16th, 1933, an additional bond of $2,000, on both of which Frank G. Haller and Anna Haller, his wife, were sureties, conditioned for the successful prosecution of the suit, otherwise for the return of the property replevied; that Joseph P. Rowan did not prosecute the suit with effect, and when the suit was called for trial in the Circuit Court for Howard County, to which it had been removed, he failed to appear, and a judgment of non pros. was entered against him. Of the effect of Rowan's non-action in the replevin, it may be said, as in Belt v. Worthington, 3 G. J. 247, 252: "The judgment by default in the replevin bond against the defendant, only admits, that he did not prosecute his writ of replevin with effect; and it is incumbent on the plaintiff in the action, to show the damage which he has sustained by the failure to prosecute." Rowan having failed to return the property replevied, Grove brought suit on the replevin bonds in Howard County, whence the case was removed to the Circuit Court for Baltimore County for trial, where it was tried by the court sitting as a jury, and from a judgment for the plaintiff, the defendants appeal.
It appears from the record that whatever title Grove had to the horse and tackle was derived from an attachment suit brought in Anne Arundel County by one Eddie Myers against Harold Latang, from whom Rowan claims *195 to have bought the horse several weeks before the attachment was issued.
The defendants reserved four exceptions, of which two were on objections to evidence, one, the third, to the court's refusal of ten of their eleven prayers, and the fourth was abandoned on appeal.
The defendants' A prayer is the usual demurrer prayer, and the first and second practically the same as the A prayer, for they asked the court to declare as a matter of law that the plaintiff was not entitled to a verdict for more than nominal damages.
These prayers directly raise the question of Grove's title to the horse, which it is admitted was derived from the attachment proceedings, and assume that his failure to show a good title would disentitle him to recover more than nominal damages, if anything. With all the presumptions in favor of the regularity of the attachment proceedings (Davis v. Helbig,
According to the record, Eddie Myers, a trainer, had in his custody a horse named "Flying Max," entered on the Maryland tracks as the property of H. Latang. Myers, claiming that Latang owed him five and a half months' wages (or salary) from May 17th, 1932, which would run to about November 11th, 1932, at $100 a month, and $100 for feed, caused a nonresident attachment to be *196
issued out of the Circuit Court for Anne Arundel County against Latang; the sheriff's return on the back of the writ being: "Attached as per schedule Dec. 10, 1932, and copy left in hands of Eddie Myers and summoned him as garnishee, short note posted on Court House door Dec. 10, 1933." He also filed a schedule of property attached, containing the following: "Attached Dec. 10, 1932, 1 race horse known as `Flying Max,' 1 bridle, 1 saddle, 1 tool chest etc. all at Barn No. 8, Laurel Race Track, Md., and copy left with Eddie Myers, plaintiff, and summoned him as garnishee." An appraisal of the horse and tackle was made, a garnishee's case docketed in the name of "Eddie Myers vs. Eddie Myers, Garnishee of H. Latang," a judgment of condemnation nisi
entered condemning the property of the defendant in the hands of the garnishee which, later, was made absolute, and execution ordered on the filing of a bond, and execution was issued against the goods and chattels in the hands of the garnishee and the horse, etc., sold after levy, advertisement, and sale, to Clyde E. Grove. There does not seem to have been any step in an orderly attachment missing. Code, art. 9; 2 Poe's Pl. Pr. sec. 505et seq. The defendants contend that the attachment was laid on the horse, and it should have been sold under the writ of fi.fa. against the horse, and not on a fi. fa. against Myers, garnishee. There is evidence in the record that the horse was, at the time, in the custody of Myers, and an attaching creditor can also be plaintiff and garnishee. Code, art. 9, sec. 10; 2 Poe,Pl. Pr. 532; Owens v. Crow,
The defendants' contention is, if we understand them correctly, that the horse never was sold by the sheriff, and this seems to be their reasoning. They find no complaint with the form of the proceedings up to the issuance of the writ of fi. fa. on the judgment of condemnation. The writ issued by the clerk commanded the sheriff to levy on "the goods and chattels, lands and tenements of the *197
said Eddie Myers, garnishee of H. Latang in your bailiwick being," which they contend is in personam against Myers and notin rem against the property, credits, etc., of Latang in his possession, and they rely on the case of International Co. v.Terminal Warehouse Co.,
No matter how regular the attachment proceedings may be, they cannot have the effect of divesting the true owner, a stranger to the suit, of his property. He may intervene by plea, motion to quash, or a claimant suit (1 Poe, Pl. Pr. secs. 561-563), but he is not bound so to do (Kilpatrick v. O'Connell,
In this state the action of replevin does not necessarily try the title to the property replevied, as the action is possessory, and in a suit on the replevin bond the defendant (plaintiff in the replevin) may prove his ownership or title to the property.Crabbs v. Koontz,
Rowan, the only witness on behalf of the defendants, testified that he had bought the horse, "Flying Max," from Harold Latang for $2,100, but could not enter it in his name because he had been ruled off the Maryland tracks, and was not reinstated until the spring or fall of 1935. In the meantime he replevied the horse and sold it to a Porto Rican for $800. If he had filed a claimant case, we can assume that he would have testified as he did in this case, and though his testimony was not contradicted by any other witness, the court could not have instructed the jury to find for him, as he would have had the burden of proving ownership and the jury might not have believed him. Lemp BrewingCo. v. Mantz,
The court refused all of the prayers of the defendants except the ninth, a burden of proof prayer which was properly granted. It was error to refuse the third and eighth, which required the court, sitting as a jury, to pass on the question of Rowan's title to the horse, which was directly in issue; and, as required in the prayers, if they found Rowan to be the owner, they could only allow the plaintiff nominal damages. Crabbs v. Koontz,
The defendants' fourth, fifth, and sixth prayers should have been, as they were, refused, because they assumed *200
the attachment proceedings to be defective, which this court does not find. Supra. The seventh instructed the jury, if they found Latang had no title to the horse when levied on by the sheriff, then the sale passed no title to the horse and the verdict should be for nominal damages only. This is, in our opinion, not a correct statement of the law. Grove got his title through an attachment proceeding, good against any one except the true owner, and the question for the jury was not whether Latang had title, but whether Rowan had. The obligors on the bond are not concluded from showing the character of the plaintiff's possessory right. Mason v. Sumner,
The defendant Rowan's A prayer sought to instruct the jury that if they found for the equitable plaintiff, he was only entitled to nominal damages under the prayers asked by the defendants, and if they found that, prior to February 17th, 1933, the horse, "Flying Max," was in the possession of Rowan, that about that day Grove took it out of the possession of Rowan and entered it in races out of which Grove collected purses, then the moneys so collected should be awarded to Rowan. It has been held in this state that a surety, who is subrogated to the rights of the principal, is entitled to recoupment from the plaintiff in a suit on the bond, so that the theory of the prayer is correct (Seldner v. Smith,
The first exception was on the answer to a question put to Grove: "Tell what happened when he (Rowan) was there?" which was answered: "They got in touch with Mr. Rowan and had him in the office and they told Mr. Rowan that the horse belonged to me," which the court refused to strike out, though immediately before that the statement of Mr. Brown (a steward), "Well, Mr. Grove, you own this horse," was stricken out. Grove had testified *201 that at a race meet at Havre de Grace, where he was racing the horse in 1933, before the replevin, Rowan had advised him that he owned the horse and demanded a part of a purse which it had just won. Grove reported the matter to the stewards at the track, who had a meeting three days later with Grove and Rowan, when the stewards are said to have made the statement objected to. There is no evidence of any admissions by Rowan. The answer, which could not reasonably have been expected from the question, was not only hearsay, but was sufficiently important to have influenced the verdict, and should have been stricken out. The question of title was being tried in court, not by stewards at a race track. It was reversible error.
The second exception was to testimony as to selling races, and the meaning of the sale price fixed on horses, and the procedure followed. A day or two before Rowan bought the horse, as he testified, for $2,100, it had a price of $1,500, which had to be paid before the race was run, and the evidence was offered either to discredit Rowan or show the value. We see no impropriety in either view.
For the reasons here assigned, the judgment will be reversed and new trial awarded.
Judgment reversed, with costs to the appellants, and caseremanded for new trial.