87 Md. 127 | Md. | 1898
delivered the opinion of the Court.
This controversy arises on a foreign attachment issued out of the Court of Common Pleas of Baltimore City at the instance of James W. Fahnestock, to whom George L. Hopper, by his promissory note dated Oct. 1st, 1894, was indebted in the sum of $1,584.70. The writ was laid in the hands of Henry Stockbridge, Jr., and Amos Mussel-man, executors of Isaac Albertson, deceased, as garnishees, to bind a legacy of $8,000 due the defendant in the estate of said Albertson, who was his uncle. This legacy was subject to a mortgage from the defendant to J. H. Preston of $4,000, which left in the hands of the garnishee the sum of $4,000. On this balance there was a second mortgage from the defendant to E. M. Allen, trustee, claimed to cover the whole balance due on said legacy. One phase of this controversy depends upon the validity, vel non, of the last-mentioned mortgage and to test its validity this attachment proceeding was instituted. We take it to be conceded that there is no controversy as to the defendant’s non-residence nor as to his indebtedness to the plaintiff On the 15th of December, 1896, the jury were sworn to try the issues joined, and on the following day Allen, trustee, filed his petition claiming the fund in the hands of. the garnishees and made a motion to quash the writ of attachment, assigning reasons therefor. The verdict and judgment being against the defendant and the said garnishees, both claimant and garnishees have appealed. In this Court the cases were argued together; they will therefore be considered and decided as but one appeal.
There are two questions presented by the record of this appeal which practically constitute the only questions which need be considered. They are briefly as follows :■ First, because the attachment proceedings are defective. Second, because the plaintiff has no standing in Court to impeach
It is claimed that it does not sufficiently appear from the affidavit that John J. Rives had any authority to make it, or that he was in fact the agent of the plaintiff, and has failed to depose that he is such agent. The Code, Art. 9, sec. 4, provides that no attachment shall issue unless there be an affidavit, &c.; sec. 7, of same article, provides, “That the affidavit required by the preceding section may be made by the creditor or one of them, where there are more than one, or by the agent of the creditor or creditors, &c.” The affidavit in this case is not materially variant from the terms of the statute to follow which it has generally been regarded a safe rule. “Under the Act of 1715, ch. 40, there appears to have been no restriction as to the status of plaintiffs in attachment cases, but by the Act of 1795, ch. 56, the right to proceed by attachment against the property of non-resident or absconding debtors was restricted to citizens of this State or of any other of the United States. This restriction continued until 1854, when by the Act of that year, chapter 153, it was put an end to.” Poe’s Pl. & Pr., vol. 2, sec. 505. Notwithstanding no one but a “ citizen of this State or of any other of the United States” could proceed by attachment against a non-resident or absconding debtor, it was only necessary to aver that he was a citizen of this State or of the United States, and not necessary to depose or establish by proof aliunde that he was a citizen of this State or of the United States. McCoy, Garnishee, v. Boyle, 10 Md. 391; Boorman v. Patterson and Israel, Extrs., 1 Gill, 372. The authorities upon this subject are directly in point and remove all doubts as to the construction proper to be placed upon this affidavit. The Gourt, in White v. Stanley, 29 Ohio St. 423, held that if
We come now to the consideration of the second question raised by this appeal. The question here relates entirely to the character of the mortgage from the defendant to Allen, trustee, which, if valid, will absorb the entire fund. But it is claimed on the part of the plaintiff that the mortgage is purely voluntary, without consideration from the defendant or any other person, and, therefore, constructively fraudulent and void as to the plaintiff. The plaintiff contends that after paying Allen $1,300 on account of his mortgage there remained in the hands of the garnishees assets to the amount of $2,625.00. The question resolves .itself into the inquiiy, whether the $2,625.00 should be applied to pay off the mortgage, or whether the mortgage was voluntary, fraudulent and void as to the plaintiff, and therefore properly to be condemned to pay the plaintiff’s claim. The evidence on this subject was very conflicting and unsatisfactory, depending almost exclusively upon the testimony of the defendant and of his brother, Harrison Hopper, for whose benefit said Allen was trustee. The controversy which this conflicting testimony created was matter for the jury to decide under the instructions of the Court below.
There are three exceptions to the admissibility of the proof offered; the first of which was to the refusal of the Court to admit in evidence a bill in equity filed by the defendant against Harrison Hopper and Allen attacking the validity of the mortgage to Allen on account of its volun
In support of the motion to quash, the claimant, Allen, trustee, has assigned various grounds, which for the purposes of this case can be reduced to one proposition, namely, that even though the mortgage was without consideration and fraudulent, the Court below had no jurisdiction to set it aside in an attachment proceeding. We think this contention is without authority to sustain it. It was very earnestly argued at the hearing in this Court and vigorously asserted that a Common Law Court had no jurisdiction to attach the fund in question here. This Court in the case of Williams, Garnishee, v. Joshua Jones, 38 Md. 555, has held differently and we think rightly. The case just referred to and the case under consideration here are in many respects similar. The plaintiff had the right to resort to either one of two remedies, that of attachment or by bill in equity. Green v. Early, 39 Md. 227; Luckmeyer v. Seltz, 61 Md. 324-5.
Having disposed of the exceptions to the evidence we can now examine the law of the prayers. At the close of the plaintiff’s case the garnishees offered four prayers, all of which the Court refused to grant, which constitutes their sixth bill of exceptions. By the first of these prayers the Court was requested to instruct the jury that “because there is no evidence that J. J. Rives, the affiant in the at
At the close of the case the plaintiff offered two prayers, which the Court granted; the claimant offered one prayer which was rejected, and the garnishees offered six prayers, all of which were rejected, with the exception of the fifth and sixth, which were granted by the Court. The plaintiff’s first prayer presents a proposition which correctly states the plaintiff’s case and is entirely free from just criticism and was properly granted. The authorities which sustain it are numerous and uniform. Goodman v. Wineland, 61 Md. 449; Ellinger v. Crowl, 17 Md. 375; Williams v. Banks, 11 Md. 226-7; Baxter v. Sewell, 3 Md. 334; Christopher v. Christopher, 64 Md. 588; Worthington v. Bullett, 6 Md, 198. The plaintiff’s second prayer requires no comment and was not pressed at the árgument. The claimant’s prayer is a mere repetition of his motion to quash and has already been considered and disposed of. We have carefully examined the garnishees’ prayers and think
Judgment affirmed with costs.