Peters v. League

Where an attachment process has- been, in fact, served on a party, he cannot ask a court of equity to enjoin execution of the judgment of condemnation, upon the ground of surprise in obtaining it. The validity of the judgment, upon which the attachment was issued, cannot be assailed collaterally in a proceeding in equity by the garnishee, to restrain the execution of the judgment of condemnation. Equity cannot restrain, by injunction, execution of a judgment of condemnation, upon the ground, that the garnishee was privileged from service of the attachment, because^f his being a member of one of the councils of the city of Baltimore, and in the actual discharge of his duties as such, at the time the writ was served on him. Service of process upon a privileged person is not void, but a mere irregularity, which may be waived by a trial or confession of judgment; the privilege must be claimed by plea or motion in the particular case, made at the proper time. Nor is service of process avoided by privilege in respect to the place where it was served.

Appeal from the Circuit Court for Baltimore City. Bill by the appellant, against the appellees, for an injunction to restrain the execution of a judgment of condemnation, which George 13, League, one of the appellees, had obtained against the complainant, as garnishee of Luke League. The bill states, that League having, or pretending to have, obtained a judgment against his brother, Luke League, caused an attachment thereon to be issued, by a justice of the peace, directed to Madison Jeffers, a .constable, who returned the same as laid in the hands of-Peters, as garnishee, and a judgment of condemnation was thereupon rendered, by the magistrate, against, complainant, without his knowledge, on which League has caused aJi. fa. to be issued, directed to the defendant, Winn, as constable, who has levied the same upon complainant’s property. The bill charges, that the attachment never was, in fact, served on the complainant, or laid in his hands, and that he never had any notice thereof, and that the return thereto is utterly and totally false, and if he had had proper notice and lawful service of the writ, and proper and lawful occasion to appear thereto and defend himself, he could have shown, that neither at the time the writ, issued, nor at any time since, had he any property or credits of Luke League in his hands. He avers, that on an afternoon, in the past winter, during one of the sessions of the City Council of Baltimore, of which he was a member, Jeffers came into the council chamber, where he was busily engaged in the discharge of his public duty, and about to reply to some re. marks then being made in debate, and approaching him ob.~ served: “I have a writ for you,” or words to that effect, ip which he replied: “This is not the place to serve it, ray place of business is ou Pratt street, where you-will always find me/’ or words to that import; whereupon Jeffers, without giving him any idea of what the purport or character of the writ was, left the chamber, he supposing Jeffers would call next day, as requested, to serve the writ, but he never did so call, apd never did then, op at any other time, inform complainant of the character qf the writ, where, when, or before whom it was to be answered, or at whose suit it had been issued, so that he remained utterly ignorant thereof, and of the return thereto, and proceedings thereunder, and never knew of the existence of the alleged attachment, or of the pretence that it had been laid in his hands, until after the judgment of condemnation had been rendered, and after it was top late for him to have remedy by appeal, as provided by law. He charges that the return was false and fraudulent, the condemnation fraudulently procured, and all knowledge of the same fraudulently concealed from him until the time for appeal had gone by; and thal they?, fa. thereon was fraudulently sued out, when too late for appeal, with the covinous intent to extort from him money which he did not and does not owe. The injunction was issued, and after answers denying the allegations of the bill, testimony was taken, and Jeffers, the constable, proved that some time previous to laying the attachment, he received a note of hand from the attorney of Gjeprge R. League, drawn by Luke League, with orders to issue warrant, that the issue was made by a justice of the peace, served within the return day, and regularly returned to the justice; that some short tjme afterwards, an attachment was ordered upon a judgment which had been rendered against Luke League, in favor of George B. League, and issued by the same justice, and put in witness’ hands with orders to lay it in the hands of complainant; witness called at his place of-business, and not finding him there, told the clerk he wanted to lay an attachment in his (complainant’s) hands, to bind money of Luke League, and the clerk directed witness to the council chamber, where he proceeded for the purpose of serving this attachment, found complainant occupying the first scat on the left upon entering the chamber, took a seat immediately behind him, outside the bar, told him the object of his visit, and handed him the attachment to read, and complainant read it, took a memorandum of the return day, and said he would attend to it; after which, witness called the attention of two witnesses to it, and made return of the attachment to the justice, as having been served in the presence of these witnesses. The council was in session and transacting business at the time, but. witness has no recollection of speech-making or resolutions being offered; complainant made no objection to the writ, but said at the time he did not owe Luke League anything, to which witness replied he had nothing to do with-it, that he (complainant) would have to come and answer on oath. The court (Krebs, J.,) dissolved the injunction and dismissed the bill, and from this decree the complainant appealed.