Hemisphere Pictures, Inc. v. Lust

Menchine, J., delivered the opinion of the Court. Hemisphere Pictures, Inc. (appellant) obtained a monetary 1 judgment for $6,188.84 against Sidney Lust ⁶⁸ Limited Partnership (Lust) on December 16, 1975, in the Circuit Court for Montgomery County. An attachment on that judgment was laid in the hands of John C. Keating, receiver of Lust, as garnishee on January 6,1976. The receiver filed a plea in the attachment case acknowledging that he was in possession of funds in excess of the amount of the judgment of appellant but alleging that such funds were held by him as trustee 2 in custodia legis subject to order of the Circuit Court.

Treating the receiver’s plea as a confession of assets (Maryland Rule G52), appellant moved for judgment of condemnation absolute. Maryland Rule F3. The receiver filed a document entitled “Opposition to Motion for Judgment of Condemnation” in which he denied that his plea had constituted a confession of assets and reasserted his prior claim that the funds were in custodia legis. The trial court conducted a hearing upon the motion for judgment of condemnation absolute and on July 9, 1976, denied the same.

The attachment on judgment was not issued or served upon the receiver until after the order for his appointment had been passed in the equity cause. More, the receiver came into actual possession of the assets of Lust prior to the issuance and service of that attachment. In Forest Lake Cemetery v. Baker, 113 Md. 529, 538 , 77 A. 853, 857 (1910), it is said: “The possession of a receiver, who is the agent of the Court appointing him, is the possession of that Court, and while prior liens are not divested by the appointment of a receiver, and he takes the ⁶⁹ property subject to all existing liens, lien creditor's cannot enforce their claims and thus disturb his possession without the permission of the Court.” In the subject case there is no proof that execution of the writ of attachment occurred prior to the time that the receiver came into possession of the assets of Lust. This is fatal to appellant’s present appeal.

Compare Obrecht v. Ensor, 162 Md. 391, 394 , 159 A. 899, 901 (1932). In