Dawson v. Contee

Bowie, C. J., delivered the opinion of this Court, having first stated the case as above: The preliminary question to be considered is, whether the refusal of a judgment of condemnation, is such an order as may be appealed from. Although it is not strictly speaking a final judgment, yet if the motion was improperly refused, it prejudices the plaintiff as effectually as a judgment of non pros. The motion is not one of those addressed to the discretion of the Court, but an application for a legal remedy, prescribed by Act of Assembly to be granted “ex débito” and not “e gratia,” or refused according to the true con ²⁹ struction of the Act. This motion is not to be classed with motions for a new trial, or otlier motions merely discretionary, but rather with such as motions to change the venue, the decisions on which this Court has repeatedly held to be subjects of appeal.

Vide 12 G. &. J., 257. 2 Md. Rep., 275 . 5 Md. Rep., 375 . Griffin vs. Leslie, 19 Md. Rep., 15 . The third section of the Act of 1715, ch. 40, entitled An Act directing the manner of suing out such attachments, etc., after prescribing the preliminaries, provides: “at which day of return of said attachment, if the said defendant shall not then appear, nor the garnishee, in whose hands the aforesaid goods and chattels and credits of the defendant were attached, to show cause to the contrary, the respective Courts shall and may condemn the said goods, &c., so as aforesaid attached, and award execution thereof to be had and made, * * * as in other judgments, he the said plaintiff, so prosecuting as aforesaid, giving good and sufficient security before the justices of the respective Courts, etc., to make restitution of the goods, etc., so condemned, or the value thereof, if the