Laflin & Rand Powder Co. v. Baltimore & Ohio Railroad

Miller, J., delivered the opinion of the Court. This appeal is from the refusal of the Court below to enter a judgment against the garnishee, for the amount of the claim for which the attachment was issued. This judgment was demanded under the Act of 1880, ch. 28, upon the ground that the garnishee had failed to answer interrogatories filed by the plaintiff, and it becomes necessary to state the special circumstances of the case. It appears from the record, that the attachment was, sued out by the appellants upon a claim against Harden & Young as non-residents, on an open account amounting to $678.98.

The writ was issued on the 20th of April, 1888, returnable to the following May Term of the Court, and was on the samé day laid fin the hands of the railroad company, which was duly summoned as garnishee. On the 30th of August following, and during the May Term, the company appeared by counsel and pleaded “non-assumpsit” for the defendants and “nulla bona” for itself' as garnishee, on which pleas issues were joined. Nothing further was done in the case until the 8th of October,, during the September Term, when the garnishee filed a, motion (supported by affidavit) to quash the writ upon the ground that the defendants were residents of the State, and on the same day, by an agreement of counsel to that effect, the case was entered continued by consent to the next term which commenced on the second Monday of January, 1884. In the meantime, however, the plain ⁷⁸ tiffs, on the 17th of October, (during the September Term,) filed interrogatories to he answered by the garnishee, and these were duly served the next day.

The Company prepared answers which were sworn to on the 24th of October, hut were not filed until the 7th of January, 1884, more than twenty days after the service of the interrogatories, and a motion was afterwards made by the plaintiffs to strike them from the rolls because they were not filed in time. Previous to this, on the 10th of November, 1883, ■and during the September Term, the plaintiffs moved the Court to enter-judgment, under the Act of 1880, against the garnishee for the amount of their claim, because the interrogatories had not been answered within the twenty days. On the 24th of March, 1884, the Court overruled the motion of the garnishee to quash the attachment, and at the same time also overruled the motion to enter the judgment, and from the overruling of this latter motion, the plaintiffs have taken this appeal. From this it appears there was no proof, nor offer of proof, of the claim on which the attachment was issued, either before or at the time the motion for the judgment was made, and it is a question whether, under the true ■construction of this Act of Assembly, the judgment could have been entered without such proof.

According to the practice under the attachment law, as it stood before the passage of this Act, the plaintiff could, and usually did, take a judgment of condemnation at the appearance term ■or return day of the writ, if neither the defendant nor the garnishee appeared. This judgment could he stricken out during the term by the appearance of the defendant under the capias, and by his giving bond if he was a nonresident ; and by such appearance and bond the attachment was dissolved. The right, however, to have the judgment thus stricken out continued only during the term, at which the writ was returned. But the plaintiff would not have execution on such a judgment within a year and ⁷⁹ a day, unless lie gave a bond as tbe law required.

The judgment thus taken on the call of the case at the appearance term was usually entered as a judgment of condemnation nisi, and was commonly so called, though in strictness it was an absolute judgment not given upon any condition whatever, but merely subject, like any other judgment to compel an appearance, to be stricken out during the term. Walters & Harvey vs. Munroe, 17 Md., 501 ; Dawson, Adm’r vs. Contee, 22 Md., 27; Evans