Johnson v. Lemmon

Alvey, J.,

delivered the opinion of the Court.

The attachment in this case by way of execution was issued on the 5th of April, 1871, on a judgment rendered on the 10th of September, 1860. There does not appear to have been any stay of execution of the judgment, nor has'the judgment ever been revived by scire facias.

The attachment was laid in the hands of the appellant as garnishee of the defendant in the judgment; and, failing to appear at the return term, judgment of condemnation was entered against him in the usual way. Upon the judgment of condemnation a fieri facias issued on the 19th of.October, 1871.

After the term had elapsed to which the attachment was returnable, and after the issuing of the fieri facias, but during the next succeeding term of the Court, the appellant appeared by petition, and prayed that the judgment and. execution thereon, he set aside and annulled, for reasons stated in the petition. This application was refused, and hence this appeal.

That the garnishee can take advantage of any defect in the attachment, is well settled; (Harden vs. Moore, 7 H. & J., 4 ;) and there being a radical'defect in the *343 attachment in this case, we think the judgment entered thereon against the garnishee should have-been set aside, and the attachment itself quashed.

The attachment was issued after the lapse of more than ten years from the rendition of the judgment. This judgment at the date of the attachment, was not subject to execution in the ordinary course of proceeding, until regularly revived by scire facias; for, after the lapse of three years from the date of the judgment, or from the expiration of the stay of execution, the presumption is that the judgment has been paid or that execution has been released, and therefore it is, that the plaintiff in the judgment is put to his scire facias to revive it, to which the defendant may appear, and plead in the same manner as to an action founded upon an original writ. Mullikin vs. Duvall, 7 Gill & J., 355, 359; 2 Tidd’s Dr., 1103; 2 Inst., 470. But, by the Act of 1862, ch. 262, it is provided, that execution by way of attachment may issue at any time within twelve years from the date of.the judgment, “and if more than three years have elapsed after the date of the judgment, or expiration or removal of the stay thereon, the said attachment shall h'e subject to the same defences by the defendant as in cases of scire facias. ’ ’ The attachment under this Act, performs the double office of execution and scire facias; that is, to some extent. It is not, it is true, a scire facias for the purpose of reviving the judgment, and procuring an award of execution. But, having reference to the presumption of payment or release, it calls upon the defendant to shew cause why condemnation should not be had of the property, rights or credits seized under the attachment. To this attachment, the defendant in the judgment has a right to appear and plead. As a condition, therefore, upon which judgment of condemnation can be rendered on such attachment, it must appear that the defendant has been duly warned of the time and place for his appearance to make *344 defence to the writ. On failure of both the defendant and garnishee to appear, at the regular call of the docket, judgment of condemnation nisi may be entered, as was done in this case ; but, upon the appearance of either at any time during the term, such judgment nisi should be stricken out, and the party allowed to defend against condemnation. If the defendant regularly appears during the term, according to the exigency of the writ, and makes defence, no judgment of condemnation should be entered until such defence is fully tried and determined. Eor otherwise execution might issue on the judgment of condemnation, or the garnishee hasten to pay to the plaintiff, before it had been determined whether the original judgment had been paid or otherwise discharged.

On examination of"the writ of attachment in this case, it appears that while it is in all other respects formal and proper, with a clause of scire facias as to the garnishee, there is a total omission of any such clause as to the defendant in the judgment. The sheriff, to whom the writ was directed, was commanded to make known the writ, and his action under it to the garnishee, that he might be in Court, at the time and place designated, to shew cause against condemnation ; but there was no such command as to the defendant; and there is nothing either in the sheriff’s return or any other part of the proceedings that shows that the defendant was ever made aware of the issue and levy of the'attachment. The writ should contain on its face such command as to notice as would justify its issue; and as the law secures to the defendant the right to appear and plead to the writ, it is proper and essential that he be made a party to it, and receive due notice of its issue. Here, all command or direction as to notice has been omitted; and because of this omission we think the writ insufficient and voidable, and that the garnishee should have been allowed to take advantage of the defect. The defect is such' as to entitle *345 him, under the well established power of the Court, recognized by section 38 of Article 75 of the Code, to he heard at the time and under the circumstances of his application, in resistance of the condemnation and execution thereon. Kemp and Buckley vs. Cook and Ridgely, 18 Md., 130 .

(Decided 30th January, 1873.)

It is proper that we should say, however, that we do not regard the writ of attachment in this case as absolutely null and void. In our opinion it is voidable only. Miles vs. Knott, 12 Gill & J., 442, 453.

The case being finally disposed of in the views expressed, it becomes unnecessary to refer to the several other questions presented in the arguments at bar.

Judgment reversed and attachment quashed.