De Bearn v. De Bearn

Boyd, C. J., delivered the opinion of the Court. Pierre De Bearn, Francois De Bearn, Odón De Bearn and Jean Baptiste Chaumet, four creditors of Prince De Bearn, issued attachments against him which were laid in the hands of the American Bonding Company of Baltimore and Alexander Brown and Sons, as garnishees. There are four records, and appeals were taken hy the Prince and Alexander Brown and Sons in each case — making eight appeals which were argued together. A judgment of condemnation was entered in each case, which recites that “The plaintiff in' this case having produced to the Court legal and satisfactory evidence of the defendant’s indebtedness to him. in the sum of,” — the amount being named — “it is this 28th day of May, 1912, ordered that a judgment of condemnation he and is hereby extended against so many of the twenty-nine New York Central & Hudson River Railroad Company 2>%% bonds, due in the year 1997, and of the one -hundred and forty-seven Chicago, St. Paul, Minneapolis & Omaha Railroad Company 6% bonds, due in the year 1930, * * * said bonds now being in a safe deposit box in the vault of the Safe Deposit and Trust Company of Baltimore rented hy ⁴²¹ said company to Alexander Brown & Sons and the American Bonding Company of Baltimore, as shall he necessary to fully pay and discharge said indebtedness, together with the costs of this action.” The blank space above describes the bonds by their numbers, and after what we have quoted there in a provision that a sufficient number of them to cover the fee of Mr. Carter and the unpaid costs in the equity case are to remain unaffected by the judgment.

That fee and the costs referred to are mentioned in the opinion filed in the equity case of Prince De Bearn v. Winans et al., ante, p. 390, and in the previous decisions in 115 Md. 139, 604, 668, 685 . Motions were made in each case by the Prince and each of the garnishees to strike out the judgments of condemnation, which were overruled. An appeal was entered in each case by Mr. Leon, “attorney for Prince Henry De Beam, appearing specially for the purpose of contesting the jurisdiction of the Court, and for no other purpose whatsoever,” and by Alexander Brown and Sons from the judgment and from the order of Oourt overruling the motion of the garnishees to strike out and vacate the judgment. In De Bearn v. Prince De Bearn, 115 Md. 668 , we reversed an order of the Superior Court of Baltimore City which released and discharged the bonds from the operation of these attachments and from any levy or garnishment.

It will he seen from page 6Y7 that it was distinctly decided in that case that these bonds are properly within the meaning pf sec. 10, Art. 9, of the Code, and that under the special facts appearing in the records and under the principles announced in prior cases referred to in that opinion they are liable to attachment, and in the event of the attaching creditors succeeding in the attachment suits the bonds could be condemned and sold; that the final judgment to be entered must he. a judgment of condemnation against the specific bonds, and not a judgment in personam for their value against the garnishees, and that upon such a judgment a writ of fieri facias could he issued and the bonds sold, after the cancellation of their registration shall have been made ⁴²² conformably to the previous decisions of this Court. Those questions are therefore no longer open and we will not discuss them. The Prince’s motion in each case to set aside and strike out the judgment of condemnation alleged that the property could not be condemned for the following reasons: 1. That said property has not been seized in this case. 2.

That the sheriff’s return does not purport to show any actual seizure of the property which said judgment purports to condemn, but only certain garnishments with respect to same; and 3, that said judgment was not due process of law and the defendant is deprived thereby of his property without due process of law and is thereby deprived of the equal protection of the laws, in violation of the Constitution of the United States and particularly of section 1 of the Fourteenth Amendment thereto. The motion of Messrs. Alexander Brown and Sons was based on the following grounds: 1. That from the papers and proceedings in this case it affirmatively appears that the Court was without jurisdiction to find that the defendant is indebted to the plaintiff in any sum of money; 2.

That it affirmatively appears that the Court was without jurisdiction to condemn the bonds. The motion of the American Bonding Company was in effect the same, but it has not appealed. We will first consider the grounds relied on by the garnishees. There is no judgment in personam against the Prince, and the recital in the first part of the judgment of condemnation was simply to fix the amount for which the property condemned was liable.

Inasmuch as there were garnishees, it may be that the Court had in mind the provisions of section 13 of Article 9, which require, in certain cases where there are garnishees, proof of the debt due the plaintiff and also of the amount of the assets in the hands of the garnishees subject to attachment. It was held in Western Bank v. Union Bank, 91 Md. 624 , that the provision “No judgment of condemnation nisi, shall be made absolute without such proof” only applied to cases where ⁴²³ there were garnishees, and not to judgments of condemnation nisi of property attached as per schedule. Inasmucch as there were garnishees in these cases it may have been thought best to have the evidence of the defendant’s indebtedness produced before the Court, but however that may be, the defendant could not possibly be injured by it, unless the amounts of one or more of the judgments of condemnation exceeded the amounts named in the respective writs and as they are not in the records, we have no means of passing on that question. If such was the case, the error could have been corrected by filing a remittitur which would have furnished no ground for impeaching the judgments either on writ of error, appeal or by motion.

Post v. Bowen, 35 Md. 232 . The first ground for vacating the judgments alleged by the garnishees was therefore not a valid one. The argument or “motion,” as it is called, filed in the ease of Odon De Bearn by the Prince proceeds on what seems to us to be a theory contrary to that of the garnishees. Point 1, is that the jdugment of condemnation was rendered without legal evidence of the indebtedness due and owing by the defendant to the plaintiff.

We will later refer to this question, but only do so now to show the conflicting positions between the Prince and the garnishees as to the question above considered. The second ground relied on by the garnishees was likewise without foundation, under the view we take of the power of the Court to condemn the bonds. Even if there were irregularities in the proceedings it does not follow that the Court was without jurisdiction. Turning then to the reasons assigned by the defendant, we will consider the first and second together.

We do not regard the case of De Bearn v. Prince De Bearn, 115 Md. 668 , necessarily conclusive of the question whether there should have been an actual seizure of the property. The question there involved was whether the lower Court was right in releasing the bonds, and while it is true that the record contains the return of the sheriff in each case, the return might have been amended or proceedings might have ⁴²⁴ been, adopted which would have met the objection. In this connection it may be well to say that we do not agree with counsel for the appellant that this Court had no jurisdiction to determine the question we did determine in that case. While the lower Court did not quash the attachment, it did release the bonds which constituted the property in controversy.

It is true that the sum of $8.16 was admitted by Alexander Brown and Sons to be in their hands, but about that there was no contention, and the only controversy in the ease was concerning the bonds. The decision of the lower Court was a final determination of the rights of the parties as to the real controversy in the case — whether the bonds could be attached- — if it could not be reviewed by us. The motion to quash was overruled, but the motion to release and discharge -the bonds was granted and they were ordered released and discharged. Such an order is not expressly authorized by our attachment laws, and it is, to say the least, a very unusual one, but without deeming it necessary to determine whether the Court in which an attachment is pending can properly pass such an order, if it can without express authority in the statute, an appeal can certainly be taken in a case like this, as it is virtually a determination of the case.

No authority could be cited which presents stronger reasons why an appeal should be allowed than .the present, for if the bonds were released further contest was useless and unless there was the right of appeal the effect of the order could not have been stayed. The appellant has apparently shifted his position in respect to this question, as he has in reference to others, for when that appeal was heard he asked that the order be affirmed and not that the appeal be dismissed. To return now to the question of the necessity of a seizure by the sheriff. The appellant quotes from Hodge and McLane on Attachments, Section 190, where it is said: “If specific property is to be condemned, it must be scheduled by the sheriff; or if he is not permitted to seize it actually, and so returns, then it may be discovered and reached by inter ⁴²⁵ rogatories to the garnishees.” Those authors go on to say: “It is only that which is seized and scheduled, and so returned by the sheriff, or that which is disclosed by interrogatories, so that it may be taken, that can be condemned.” It will be remembered that under sec. 10 of Art. 9, Code (1912), “Amy hind of property or credits belonging to the defendant in the plaintiff’s own hands, or in the hands of anyone else, may be attached; and credits may be attached which shall not then be due.” It may be that it would have been better practice if the plaintiffs had instructed the sheriff to demand of the garnishees the right to seize the bonds, and upon their failure to do so to so return to .the Court, but it would certainly have been an idle form for the sheriff to have made such demand, as the garnishees could not with safety have surrendered the bonds, and of course the sheriff could not have broken into the vaults of the Safe Deposit Co. in order to levy on them.

But he returned that he had laid the attachments in the hands of the American Bonding Company and of Alexander Brown & Sons, and