Ford Motor Credit Co. v. Farmers National Bank

Hammond, C. J., delivered the opinion of the Court. This appeal involves the right of a garnishee who has ⁶⁹⁷ filed a plea of nulla bona which the attaching creditor does not contest to have the court award him a reasonable counsel fee under Maryland Rule G52 d, reading: “If upon a plea of nulla bona, judgment shall be entered for the garnishee, the plaintiff shall be adjudged to pay to the garnishee an attorney’s fee to be fixed by the court and the costs of the action.” In the Circuit Court for Anne Arundel County the appellee, The Farmers National Bank, the garnishee, simultaneously with filing its plea of nulla bona on February 23, 1971, moved for summary judgment against Ford Motor Credit Company, the attaching creditor, for an attorney’s fee in an amount to be fixed by the Circuit Court for Anne Arundel County in accordance with Rule G52 d. Ford did not challenge the plea but dismissed its attachment on March 3. After a hearing, Judge Melvin struck Ford’s dismissal and entered judgment against Ford in favor of the Bank for a $50.00 attorney’s fee.

The essence of the reason for Judge Melvin’s actions is found in these words from his opinion: “In the court’s opinion the plaintiff’s dismissal of its claim against the garnishee could not serve to cut off the garnishee’s right to have the court rule on its Motion for Summary Judgment which motion had been filed in the case before the plaintiff’s ‘Order of Dismissal.’ This is so because in the court’s opinion it was the clear intention of the legislature, as well as the superseding rule on the subject, that a garnishee who is put to the trouble and expense of determining whether or not it has attachable assets of the defendant, and who finds no such assets and then employs an attorney to file the correct pleadings in its defense, should not have to bear the expense thereof. In the court’s opinion the rule is a salutary one as it serves to prevent ⁶⁹⁸ indiscriminate fishing expeditions on the part of judgment creditors at the expense of garnishees.” We disagree, finding that the purpose of the statute on which Rule G52 was based did not contemplate an attorney’s fee to a garnishee unless there was a judgment for the garnishee that followed a trial to determine the validity of the attaching creditor’s challenge to the correctness of the garnishee’s return. Rule G52, entitled “Appearance of Garnishee,” became effective January 1, 1959 as Rule 1140 M, and was later recodified in September 1961 to its present format. (The Rule is quoted below.) 1 It restated, without apparent change in substance or intended meaning, the provisions of Code (1957), Art. 9, § 16, which was repealed by Ch. 36 of the Laws of 1962.

Rule 2 provides that the Maryland Rules “shall be interpreted as declaratory of the practice and procedure as it existed prior to their adoption, except insofar as is otherwise expressly provided or they are inconsistent therewith, or as may result from necessary implication.” It appears that § 16 of Art. 9 went no further in departing from the long established rule in Maryland that a successful litigant is entitled to costs but generally ⁶⁹⁹ not to counsel fees than to establish that it is only when a creditor disputes the pleas of the garnishee and puts him to his proof and loses that he must pay the garnishee an attorney’s fee. This is indicated not only by the language of § 16 but also by the wording of Code (1957, 1968 Repl. Vol.), Art. 9, § 13, and a statement in 2 Poe, Pleading and Practice (Tiffany Ed.), § 840 A. Section 16 provided that the garnishee may confess the assets in his hands “and if the plaintiff will not take judgment of condemnation for the amount so acknowledged, but