Weikel v. Cate, 58 Md. 105

Weikel v. Cate

58 Md. 105 | Md. | 1882

Robinson, J.,

delivered the opinion of the Court.

The Act of 1874, ch. 320, repeals sec. 16, of Art. 29, Code of Public General Laws, as amended by the Act of 1867, ch. 267, and provides, that on all judgments rendered in any Court of lazo, an execution or attachment may issue at any time within twelve years, from the date of the judgment.

In this case, an attachment was issued by a justice of the peace, on a judgment rendered by a justice of the peace, of more than three years standing, and the main question is, whether such a judgment is within the meaning of the Act of 1874 P

At common law, justices of the peace were merely conservators or keepers of the peace, and although the Legislature in this State has conferred on them a limited jurisdiction in civil and criminal cases, the office itself has never been considered a Coui't of lazo.

This, we think, is apparent from sec. 1, Art. 4, of the Constitution, by which it plainly appears, that a Court of law within the meaning of the Constitution, is a Court of record. A judgment rendered before a justice of the peace, is not therefore a judgment within the meaning of the Act of 1874.

This being so, the question is, whether the appellee Cate, is entitled to an injunction to restrain the execution of the judgment of condemnation entered on the attachment ? And this depends upon whether the judgment of condemnation was obtained by fraud, mistake or surprise, and without any fault on his part.

The proof shows that in 1871, jWeikel, the appellant, recovered a judgment before a justice of the peace against *111Schaum. In 1878, Schaum recovered a judgment against Cate, in the Court of Common Pleas of Baltimore City, from which Cate appealed to this Court. On the day the judgment was entered, Weikel caused an attachment to be issued on the judgment, which he had recovered in 1871, before the justice of the peace, and the attachment was laid in the hands of Cate, garnishee of Schaum. On this attachment, a judgment of condemnation was subsequently entered against Cate. After a careful consideration of the testimony of the several witnesses, we fully agree with the Court below, that the judgment of condemnation was entered by mistake, and this too, without any fault on the part of Cate or Schaum. Although the evidence is conflicting, it plainly appears, we think, that-the understanding between the parties was that no judgment was to be entered on the attachment, until the final disposition of Cate’s appeal against Schaum. Until then, Cate, in point of fact, had no funds in his hands liable to garnishment. Such being the case, he was clearly entitled to an injunction, restraining the execution of the judgment of condemnation, which had been entered by mistake against him.

But it is argued, that the decree is also erroneous, because it enjoins the appellant from issuing an execution for any amount whatever, whereas the bill only asks that he be restrained from executing: the judgment for more than 8119.40. Were this a bill for an injunction merely, there might be some force in this contention. But the complainant alleges that he owes in fact only $4 50 on the Schaum judgment, and that Ik; is threatened on the one hand by Schaum, with execution for the whole amount of this judgment, and on the other hand, he is threatened by Weikel with execution on the judgment of condemnation against him as garnishee of Schaum. He then prays that he may be permitted to bring into Court the sum of 0150 with interest, to abide the result of the suit. The bill is therefore in the nature of a bill of interpleader. All *112the parties in interest were before the Court, and inasmuch as the justice of the peace had no power to issue the attachment, and the judgment of condemnation having been entered by mistake, and contrary to the agreement of the parties, the Court properly enjoined the appellant from issuing an execution for any amount on said judgment.

(Decided 3rd March, 1882.)

For these reasons, the decree below will be affirmed.

' Decree affirmed.