Gorn v. Kolker

Henderson, J., delivered the opinion of the Court. These appeals are from the denial by the trial court of motions to make Phyllis J. Schreter, and others, third party defendants in an attachment on judgment proceeding. The appellees had obtained a judgment by default against the appellant on September 13, 1944, in the amount of $8,251.66. In 1948, they filed a bill in equity seeking the sale and partition of certain real estate owned by Gorn and others to satisfy the judgment, and a demurrer to this bill was sustained.

In an amended cross-bill, filed in 1952, Gorn sought to have the judgment declared null and void, on grounds of fraud, mistake, and that the claim on which the judgment was ⁵⁵³ based had been satisfied. On appeal to this Court, the cross-bill was dismissed on the ground that there was no proof of a meritorious defense. Kolker v. Gorn, 202 Md. 322 , decided May 13, 1953. An attachment on judgment was issued on July 1, 1954, and laid in the hands of Marsam Contracting Company, Inc. This garnishee confessed assets in the amount of $174.18.

Another attachment was laid in the hands of Gorn Brothers, Inc., and there was a plea of nulla bona by this garnishee. On July 12, 1954, the judgment creditor filed replications to these pleas, claiming that the garnishees had in hand more moneys than they admitted, and also filed interrogatories that were duly answered to the effect that no other funds were due Gorn. Presumably the judgment creditor would have been entitled to move for summary judgment for the sum admitted, but no such motion was filed and the cases were not set down for trial. On March 1, 1956, the judgment debtor appeared by counsel and filed pleas and motions to quash the attachments asserting, among other things, that “he never promised as alleged”, that the judgment was obtained by fraud, and that it had been paid, satisfied, discharged or released.

The judgment creditor filed a replication and plea of res judicata in each case, but again the cases were not set for trial. On September 4, 1956, the judgment debtor filed motions to make Mrs. Schreter and others third party defendants, to which the judgment creditor filed motions to dismiss, on the ground that the motions were an attempt to reopen the original case. These motions to dismiss were granted. An attachment on judgment is considered as an execution and governed by the same principles.

Sharpless Separator Co. v. Brilhart, 129 Md. 82, 86 . The right to obtain such an attachment is conferred by Code (1951), Art. 9, sec. 29. The garnishee may, of course, defend on the ground that no moneys are due by it to the judgment debtor, Bendix Radio Corp. v. Hoy, 207 Md. 225, 229 , but may not attack the validity of the judgment on which the attachment issues. It would appear that both the garnishee and the judgment debtor may appear to contest the condemnation of the funds gar ⁵⁵⁴ nished.

See Gomborov, The Law of Attachment in Maryland, p. 93. But neither can contest the claim merged in the judgment. Farley v. Colver, 113 Md. 379, 384 . In Bartlett v. Wilbur, 53 Md. 485, 497 , and Summers v. Oberndorf, 73 Md. 312, 314 , which were attachments laid prior to judgment under Code (1951), Art. 9, Sec. 1, et seq., it was held that after judgment in the short note case the liability of the judgment debtor was no longer in issue, and that the sole issue under a plea of nulla bona is whether the garnishee has funds of the debtor liable to garnishment.