Freidenrich v. Moore ex rel. Campbell

Bartol, J., delivered the opinion of this Court. A writ of attachment or warrant was issued in this case, on the 22nd day of February, 1859, at the suit of Robert and Charles Moore, (the appellees,) for the purpose of recovering the sum of $4,546 54, alleged to be due them' by L. H. Springer and Charles Fries, non-residents, the writ was on the same day ‘ ‘ laid in the hands of the appellants trading in Baltimore under the name of Springer, Freidenrich & Co.,” and was returnable to the ensuing May Term of the Superior Court. At that term the writ having been returned, and the garnishees not appearing, a judgment of condemnation nisi was entered against them on the 9th of May. No other proceedings were had until the 27th day of February, 1860, when Mr. Campbell appeared for the garnishees and filed a motion to strike out the judgment, but assigned no cause in support of the motion ; afterwards, on the 8th day of March, 1860, the same motion was renewed on the part of the garnishees, ³⁰⁵ asking that the judgment be stricken out and set aside, ‘ ‘ for fraud and deceit, surprise and irregularity in obtaining the same.” Accompanying this motion were the affidavits of Henry Bookman, Frederick Krager, Abraham Freidenrich and Moses H. Springer.

On the 10th day of March, 1860, motions were entered, one on behalf of the garnishees and the other on behalf of the defendants, “to quash the attachment because the accounts on which the defendants are alleged to be indebted to the plaintiffs, were not produced, and filed with the affidavit made by plaintiffs before the Justice who issued the warrant of attachment.” On the 13th day of March the Court passed an order suspending execution upon the judgment till the further order of the Court, provided a bond should be filed by the garnishees as prescribed. The bond was filed accordingly. Thereafter a number of affidavits were filed on behalf of the garnishees, and of the plaintiffs, touching the alleged fraud and surprise in obtaining the judgment; and on the 16th day of June, 1862, the Superior Court overruled the motions to strike out the judgment, and to quash the attachment, from which decision this appeal was taken. It appears from the record that the objections to the judgment rest upon two grounds : 1st.

Fraud, deceit and surprise alleged to have been practiced by the appellees, in obtaining the same. 2nd. Irregularity in the judgment itself. The first is to be determined by the testimony. This has been carefully examined, and the conclusion we have' reached, on this branch of the case, is that the allegation of the appellants, in this respect, is not established by the evidence.

It conclusively appears that the attachment was served on the appellants at their store on the 22nd day of February, 1859. This fact is established by the Sheriff’s return, and ³⁰⁶ is corroborated by other proof. It appears that when the Sheriff went to serve the writ, the appellants, Faust Freidenrich and Moses H. Springer were at the store of the appellees, and their book-keeper, Bookman, went there to inform them of the Sheriff’s visit. They were alarmed by the intelligence, and they state in their affidavits that Robert Moore informed them that it was an attachment he had laid in their hands against Springer & Fries, “but that it did not amount to anything,” and Faust Freidenrich states that Moore further said to him that he (Moore) “ only did it to effect a settlement.” Robert Moore in his affidavit expressly contradicts this statement, and swears that what he said to them was ‘ ‘ that they might not be so much alarmed about it, that there was time enough for them to attend to it, but that notwithstanding, they both left his store,” and he states, “that it is not true that upon that or any other occasion he told them or either of them that the writ of attachment wag of no consequence, or that he had caused the same to be issued to effect a settlement with Springer & Fries.” Faust Freidenrich further states in his affidavit that, in April, 1859, he asked Robert Moore if it was necessary to employ a lawyer, and that Moore told him that he did not want them to employ a lawyer in the case, that the-attachment would not be pushed, and that all he wanted was, not to make the garnishees pay the money, but to effect a settlement through their influence with Springer & Fries.” This statement stands on the testimony of Faust Freidenrich alone, and is positively contradicted by the affidavit of Robert Moore.

The witness, Frederick Krager, states that in, August, 1859, Robert Moore asked Moses H. Springer to go before the Commissioner in Baltimore to testify in a suit of the appellee’s against Springer & Fries, then being prosecuted in Cincinnati, which Springer at first declined to do ; but. ³⁰⁷ Moore told Mm if lie would go before tlie Commissioner and testify, the case here (that is this attachment case,) should be settled. Moses H. Springer states the same thing. As to this evidence, it may be remarked that it is contradicted by Robert Moore’s testimony, and is inconsistent with the facts established by other proof showing that Springer was a