Graff v. Merchants & Miners Transportation Co.

CociíBAJN, J., delivered the opinion of this court. This appeal was taken from an order setting aside a fieri facias, and strikiug out a judgment obtained by the appellants in a case of attachment against L. Bernard. From an inspection of the docket entries contained in the record, it appears that the case against the appellee, as garnishee, was docketed, and judgment of condemnation nisi entered on the 14th of September 1857, the return day of the writ; that the fieri facias was issued on the judgment so entered, on the 12th of January 1859; that the petition of the appellee ³⁷⁰ to strike out the judgment, was filed on the 4th, and the order of the court, striking out, passed on the 9th of March 1859. The appellee filed its petition for striking out the judgment, because of certain irregularities in the mode of obtaining it.

Before the argument, a motion was filed by the appellee to dismiss the appeal, on the ground, that the judgment was not so far final upon the claim in controversy, as to authorize an appeal from the order to strike it out. A determination of the character of the judgment, as to its regularity and conclusiveness, will therefore dispose of the questions presented by the record, and involved in the motion to dismiss. In considering the motion to dismiss,- we cannot look beyond the judgment itself. If it be found to ascertain and fix upon the appellee an adjudicated.liability, and to conclude it of all right of defence, it would be unreasonable not to hold it so far final and conclusive on the claim, or right,-in-controversy, as to authorize an appeal on the part of one who loses the benefit of such a judgment, by an order striking it out.

Upon an inspection of the judgment as presented in the record, we do not think it open to question in this respect. It ascertains the amount of goods, chattels and credits, in the hands of the appellee,-as garnishee, and'condemns the same towards satisfying the appellant’s claim, in the usual form of an absolute judgment in such cases. It covers the whole of the appellant’s claim, and until stricken out, was binding and conclusive upon the appellee. This fact is conceded by the appellee by filing its petition-to strike out-the judgment, in order that itunight be enabled to appear and plead its proper defences, and try the case in due course of law.

The lapse of the term at which the judgment was entered, concluded the right of the appellee to appear and plead, and the effort made by petition to strike out the judgment for irregularity, justifies the conclusion that it was otherwise final. The rule deduced from an examination of the cases involving this question, recognized'in the case of Green vs. Hamilton, 16 Md. Rep., 327 , we think clearly establishes the right of appeal claimed in this ³⁷¹ case. Upon a motion to dismiss the appeal,