Hardesty v. Campbell

Stewart, J., delivered the opinion of the court. The Code of Pub. Gen. Laws, Art. 10, sec. 30, authorizes any plaintiff having a judgment in any court of law in this State, to issue an attachment instead of any other execution against the lands, tenements, goods, chattels and credits of the defendant, in the plaintiff’s own hands or in the hands of any other person.

Sec. 31, provides that if neither the defendant nor garnishee, in whose hands such property or credits were attached, appear at the return of the attachment, and show sufficient cause to the contrary, the court shall condemn the said property and credits, so attached and award execution thereof. By the Act of 1861-2, ch. 262, it is further provided, that executions by way of attachment may issue at any time within twelve years from the date of the judgment, the said attachment to be subject to the same defenses as in case of scire facias, if more than three years have elapsed from the date or expiration ,of the stay thereon. In this case, the garnishee appeared and filed a motion to quash the attachment for reasons assigned. He was not only required to appear, but to show sufficient cause to sustain his motion.

No proof was offered to support several of the grounds relied upon. In Lambden v. Bowie, 2 Md. ⁵³⁷ 340 , which was a case of attachment on warrant, (and we are not aware of any reason to distinguish the practice in this regard, from such case as this,) it was ruled, that “ when a motion of this sort is made, and the circumstances relied upon to sustain it are not admitted to be true by the opposite party, reasonable opportunity should be given to produce testimony on the subject. The manner of taking the proof may be regulated by consent of parties, or directed by the court, in accord*ance with the rules of practice, in summary proceedings of this and of like character.” In Gover v. Barnes, 15 Md. 576 , the same practice is affirmed, “ that the court had authority to entertain the motion to quash, to hear the evidence in relation thereto, and decide the motion.” We do not understand the offer of the plaintiff’s counsel, to prove certain alleged facts at the trial of the case, as admitting the truth of the allegations relied upon by the garnishee as grounds for quashing the attachment. There was no proof or pleadings to conclude the parties.

Under the state of the case, upon the motion made by the garnishee, it was incumbent on him to sustain his motion by competent proof. The Act of 1861-2, ch. 262, above cited, is an answer to the fifth reason assigned in