Hughes v. Svboda

Johnson, J., delivered the opinion of the Court. ⁴⁴¹ During April, 1934, appellee, Jacob Svboda, also known as James Benoa, was sentenced by the Criminal Court of Baltimore City to the Maryland House of Correction at Jessups, Anne Arundel County, for a term of two years, and on May 11th, 1934, while serving such sentence, Raymond Hughes, appellant, instituted in the Circuit Court for Anne Arundel County against Svboda, alias Benoa, nonresident attachment proceedings for the purpose of collecting an alleged claim of $775. The writ of attachment was returnable on July 16th, 1934, and was served upon the superintendent of the Maryland House of Correction on May 12th, 1934, and this institution was summoned as garnishee, but Svboda, alias Benoa, was not summoned, and the writ of summons, which under section 9 of article 9 of the Code was required to be issued with the writ of attachment, was returned “non est” by the sheriff of Anne Arundel County. On May 14th, 1934, Svboda, alias Benoa, appeared in the attachment case and moved to quash the attachment, assigning among other reasons for such motion (1) that no writ of summons was issued against him, (2) because at. the time of the filing of the proceedings he was a resident of the State of Maryland, and (3) for “other reasons apparent on the face of the proceedings.” At the time of the incarceration Svboda, alias Benoa, had on his person cash amounting to $426.25, which was taken from him by the warden of the Maryland House of Correction, of which amount, prior to laying the attachment, the prisoner had spent $8.71, leaving in the hands of the institution at the time it received notice of the attachment the sum of $417.54, for which on June 9th, 1934, the Board of Welfare, through the Attorney General of the State, confessed assets. Subsequently the motion to quash the attachment was heard by the court below, at which time certain testimony was taken relative to the residence vel non of Svboda, alias Benoa, and thereafter, on November 22nd, 1934, the motion to quash was granted.

This appeal is taken from the court’s action in quashing ⁴⁴² Appellant insists that the court erred in quashing the attachment, because the testimony in the record showed appellee was a nonresident of the state, while appellee contends the evidence showed he had been a resident of Maryland for some months prior to being sentenced to the Maryland House of Correction, was amenable to suit in the Circuit Court for Anne Arundel County at the time the attachment was issued, and the writ of summons which was issued with the attachment could readily have been served upon him. The respective merits of these contentions will not be discussed, since we are of the opinion that the lower court