Anderson v. Graff

Babtol, C. J.,

delivered the opinion of the Court.

In our opinion the order of the Superior Court, overruling the appellant’s motion to set aside the execution, and *606 strike out the judgment of condemnation in this case ought to he affirmed.

The reasons assigned in support of the motion were founded, 1st. Upon alleged defects in the writ of attachment, and irregularity in the proceedings under it, and in the issuing of execution upon the judgment; and 2nd. Upon alleged fraud or surprise practiced upon the appellant, in the service of the writ, and in entering the judgment.

1st. The writ of attachment contained a clause of scire facias, which by the Act of 1862, ch. 262, is necessary in all cases where an attachment by way of execution is issued after the lapse of three years from the date of the judgment, Johnson vs. Lemmon, 37 Md., 336 ; but such a' clause is not necessary, where, as in this case, three years have not elapsed after the rendition of the judgment. But while it is not required, it does not render the writ invalid or defective; hut will he treated as mere surplus-age. We may add, that an objection of this kind, could he made only during the term at which the judgment of condemnation Avas entered; after it had become absolute by the lapse of the term it would be too late. Windwart vs. Allen, 13 Md., 197 ; Friedenrich vs. Moore, 24 Md., 296 . The writ was issued on the 13th of June, 1873, and was returnable the second Monday of September, 1873. The judgment was entered on the 9th of September, in the same year. The sheriff's return does not show on its face when the writ was returned, and we have not the docket entries before us. But the legal intendment would be, in the absence of proof to the contrary, that the writ had been returned before the judgment was rendered. Besides, there is endorsed on the writ by the Court clerk, “ Fd. 8th September, 1873.'' It appears by the affidavit of the clerk, that this endorsement Avas made after the execution was issued, his attention having then been called to the matter;, and he states that ‘‘the endorsement states the truth, and is correct.''

*607 The sheriff’s return was as follows : “Laid in the hands of James M. Anderson, on the 14th of June, 1873, at 9 o’clock, A. M.; also laid in the hands of James M. Anderson on the 9th of August, 1873, at 12.45 o’clock, P. M., in presence of C. Hancock, and garnishee summoned.” Tt is contended that the service was irregular and defective, because it appears that the writ was laid in the hands of the garnishee on two different days. That would be no valid objection even if it had been made in time, and though it appeared that the writ had been regularly and sufficiently served on both days. In this case, however, it appears that the service made on the 14th of June, was defective by reason of a failure to summon the garnishee ; in such case it was the sheriff’s duty, to serve the writ according to law, and no valid objection can he made to his proceedings in this particular. The attachment having been issued upon a judgment; the appellee was entitled to issue execution as soon as the judgment of condemnation thereon had become absolute by the lapse of the term at which it was entered. In such case no bond is required, as where the judgment is in attachment upon original process. H . & M. on Attachment, sec. 170.

It follows from what we have said, that there was no defect in the writ, or any irregularity in the proceedings under it, which can entitle the appellant to have the judgment stricken out, or the execution thereon set aside.

2nd. The next question is, whether the facts disclosed in the record establish the charge of fraud or surprise practiced upon the appellant.

It appears that the appellant was, at the time the attachment was issued, the City Collector, and Thomas Carroll, against whom the original judgment had been rendered was an employe under him in the office. The writ was served upon the appellant at his public office, and he states “that the circumstances attending the service led him to ■believe that the attachment was laid in his hands as such *608 City Collector, and not individually.” And so believing, he did not incur the expense of retaining private counsel, being informed that had the attachment been laid in his hands as collector, the attention of the city counsellor, or city solicitor would be called to the case by the docket, and the appearance of one of them would be entered to the case. “But by reason of the attachment having, under the authority" of the attorney who ordered the writ, been laid in his hands individually, he was unjustly misled and deprived of a fair opportunity to make his defence.” He further states substantially, that he was not at that time, and has never been indebted to Thomas Carroll in any sum whatever, and has never had in his hands, any money or property of Carroll.

Mr. Bump, the appellee’s attorney who ordered the writ of attachment to be issued, testified that he knew the defendant Carroll was an employé in the City Collector’s office; but he had no knowledge whatever, whether or not James M. Anderson, individually, held any moneys of Carroll, or was individually indebted to him. These facts certainly show that the case is one of great hardship upon the appellant. But as this has resulted altogether from the inadvertence or mistake of the appellant, without any fraud or deceit practiced upon him by the appellee, directly or indirectly, he is not' entitled to relief. The cases of Windwart vs. Allen, 13 Md., 196 , Green vs. Hamilton, 16 Md., 317 , and Friedenrich vs. Moore, 24 Ma., 295, establish the rule that where the process has been regularly served upon a party, and he has failed to appear and make his defence, and judgment has been regularly entered against him, a strong case must be presented, to justify the Court in striking out the judgment after the term has passed. In the case last cited, it was said, “that to justify the striking out of the judgment, it is necessary that clear and convincing proof be given, that the garnishees were prevented from making their defence, by deceit *609 practiced upon them by the plaintiffs.” In this case there is no such proof. The only reason assigned by the appellant, for his mistake in supposing the writ was laid in his hands in his official character, and not as an individual, is, that the service was made at his office. There is no evidence that he was misled by the sheriff, and the return of the officer shows in what manner the service was made. As was said in 24 Md., 308 : “It must not be lost sight of, that the process was regularly served upon the appellant as garnishee, by the sheriff. After the return of the writ, the judgment complained of was entered in Court, and stood upon the public records, as notice to him, that unless lie appeared and made defence during the term, the judgment would become absolute.” We find no sufficient reasons presented by the appellant for striking out the judgment, and the order of the Superior Court must he affirmed.

(Decided 9th March, 1875.)

Order affirmed.