Walters v. Munroe

17 Md. 501 | Md. | 1861

Le Grand, C. J.,

delivered the opinion of this court.

At the instance of the appellants, an attachment issued from the circuit court for Prince George’s county, to recover of the defendant the amount of a promissory note. On the 5th day of April 1858, the sheriff returned the writ of attachment, with a schedule of certain real estate which he had attached. On the return day of the writ, being the first day of the session of the circuit court, the defendant moved the court to dissolve the attachment, and permit him to appear without bond. This motion was overruled by the court, and a judgment entered in the following words:

“And thereupon it is considered by the court here, that the said plaintiffs have their judgment of condemnation against the lands and tenements of the said John H. Munroe, so as aforesaid attached, for as well the said debt, costs and charges aforesaid, as for all damages, costs and charges which shall or may accrue in the premises, by reason of the prosecution of the said writ of attachment, [if the said defendant shall not, within a year and a day, to be accounted from this day, come into court here, and by first filing a bond in the penalty required by and conditioned according to the Act of Assembly in such case made and provided, appear in person or by attorney, and make it appear to the court here that the said plaintiffs have been or are paid the debt aforesaid, or shall otherwise, in court, discount or bar the said plaintiffs of the same, or any part thereof.”] The record then goes on to' declare, that “thereupon, on motion of the parties, by their attorneys aforesaid, and by order of court here thereon, this cause is continued until the first Monday in November next.”

At the April term, 1859, the defendant prayed the court “to strike out the judgment nisi,” upon his filing bond, &c. This motion the court allowed, and hence this appeal.

All that part of the judgment which we have included in brackets, commencing with the word -“if,” and terminating with the word “thereof,” it is contended on the part, of the appellants, is no part of the judgment, but misprision of the clerk, and ought, therefore, to be disregarded by this court. Upon the determination of the true character of this judgment must depend the decision of this appeal.

At the lime the judgment was entered, the plaintiffs were entitled to their judgment of condemnation, with the right, to1 execution on compliance with the Acts of Assembly.

Under the Act of 1715, ch. 40, the defendant bad the right to come in at any time during the term (at which the attachment was returned,) and by giving bail and appearance under the capias, to dissolve the attachment, and to plead and defend the action; the attachment being merely ancillary to the suit, and intended to compel an appearance. But this right of tlie defendant to appear and dissolve Ike attachment, continued only during the term. The judgment nisi, entered on the call of the case, becomes absolute upon the failure of the defendant to appear aud defend during the term. Mr. Evans, in his book of Practice, page 99, very properly says, in speaking of a judgment of condemnation in attachment on warrant, “but the judgment, like all other judgments intended to compel an appearance, may be stricken out during the term, hence the judgment, is very improperly called a condemnation nisi, but, in fact, it is an absolute judgment, not given upon any condition whatever.” Although ther judgment nisi, in attachment on warrant, is like any oihetr judgment absolute, subject t.o be stricken out only during the term, yet, under the provisions of the Act of 1715, the plaintiff cannot have execution within a year and a day, without first giving a bond, conditioned to make restitution in case the defendant shall, within a year and a day, to be accounted from the attachment awarded, come in and show that the plaintiff’s claim has been paid, or barred in whole or in part. The Act of 1834 provides, that when the defendant is “a non-resident,” the attachment shall not be dissolved, unless he appears and gives bond,'&c., as therein prescribed. This Act does not give to the defendant the right to come in after the term has passed, and, by filing bond, to have the judgment of condemnation nisi stricken out, and the attachment dissolved; but, on the contrary, it confines the right of dissolving the attachment by the bond and appearance within the period in which it might, before that Act, have been dissolved by appearance and bail; that is to say, during the term*. The words of the Act of 1534, are, “that the attachment shall not. be dissolved, unless the defendant gives bond,” &c.; as before, it could not be dissolved after the judgment nisi and the term had expired, so. the Act of 1834 cannot properly be construed to extend the time for dissolving the attachment; it simply superadds to the appearance and bail before required the necessity of giving a bond, in order to have the attachment dissolved..

The result of what has been said is, that the judgment entered in this case is not an ordinary judgment of condemnation nisi, but contains terms and provisions that gave rights to the defendant to which he would not have been entitled by law, and although it does not appear that this was done by consent of the plaintiffs, yet their not moving in the court below, and insisting on their motion to have the judgment corrected, must be taken as an acquiescence in its form; on this appeal we cannot disregard any of its terms; we must deal with it as it is stated in the record, and determine whether, according to its terms, the defendant was entitled to have his 'motion granted. The condition set out in the judgment is, •“if the defendant shall, in a year and a day, come in, give bond, and show that the claim of the plaintiffs has been paid or barred in whole or in part.” Now this last is a condition precedent, and it was error to grant the motion by striking -out the judgment before the defendant had successfully defended the suit in the short note case; or, in other words, performed all the 'conditions stipulated in the judgment. Although for this reason it may be necessary to reverse the decision of the court below on the motion, yet, as the defendant has obtained judgment in the suit on the promissory note, (the short note case,) which has been affirmed in this court at the present term, (see Walters & Harvey, vs. Munroe, ante 150,) this case will not be sent back under procedendo.

(Decided March 27th, 1861.)

Judgment reversed, but without procedendo

-The record in the case of Woodruff & others vs. Monroe, presented the same state of facts, and was argued at the same time, before the saute judges, and by the same counsel.

Le Grand, C. J.,

delivered the opinion of this court.

The principles stated in the opinion in the case of William T. Walters and Charles Harvey, vs. John H. Munroe, govern also this case, and for the reasons therein assigned, this judgment must be reversed, and inasmuch as this court, in the case of John H. Munroe vs. Albert Woodruff and others, to which litis attachment was ancillary, decided at this term, (ante 159,) has reversed the judgment below, and awarded a procedendo, and the plaintiffs in that case may ultimately recover a judgment., and, in that event, will be entitled to the lien of their attachment, a procedendo will be awarded.

Judgment reversed and procedendo awarded.

(Decided March 27th, 1881.)

The record in the case of Fowle & Co. vs. Monroe, also presented the same state of facts, and was also argued at Ihe same time, before the same judges, and by the same counsel.

Le Grand, C, J.,

delivered the opinion of this court.

The reasons assigned for a reversal in the case of Walters & Harvey vs. Munroe, apply with equal force to this record; but inasmuch as there is nothing before this court to show what has become of the short note case, to which this action was but ancillary, the ease will be sent back under procedendo.

Judgment reversed and procedendo awarded.

(Decided March 27th, 1861.)

Note. — In all these cases motions for re-argument were made by the appellants,' but were overruled by the court.