Lee v. Carrollton Savings & Loan Ass'n

Robinson, J., delivered the opinion of the Court. The appellee, in January, 1816, recovered judgment against King and wife for $1120.75. In June, ISÍJ, an attachment was issued on this judgment, and laid in the hands of the appellant as garnishee; and in September following, judgment of condemnation was entered. On this judgment of condemnation an attachment was issued, and this attachment was laid in the hands of Kerngood Brothers as garnishees of Lee, and judgment of condemnation was entered against them.

Motion was subsequently filed by Kerngood Brothers to strike out this judgment, and on appeal it was decided that the judgment was properly stricken out, because it was entered by the clerk, in the clerk’s office, “without any order or authority, actual or constructive, from the Judge to make the entry.” Kerngood’s Case, 51 Md., 416 . This appeal is from the action of the Court overruling a motion filed by the appellant to strike out the judgment of condemnation against him. The proof shows that it was not the practice of the Court of Common Pleas of Baltimore City, at the time the judgments of condemnation against Kerngood Brothers and Lee were entered, to callover the appearance docket; and that in all attachment cases to which the garnishees failed to appear, judgments of condemnation were entered by one of the deputy clerks in the clerk’s office, without any order or authority from the Court. Mr. Grrindall, chief clerk, testifies that the Kerngood and Lee judgments of condemnation were entered in this manner. ³⁰³ To prove that the judgment against Lee was not thus entered, and not therefore witliiu the ruling in .Kern-good’s Ouse, the appellee relies upon the affidavit of Mr. Victor Smith, its former attorney, in which he says,-he went over to the Court of Common Pleas on the day the dockets were called, to the best of his recollection, and asked the Court if lie was entitled to judgment against Lee, to which the Court replied, “he, was” and the answer of the Court to the affiant being communicated to one of the clerks “ as he has reason to believe, said judgment was entered, vp upon the proper book or docket.” This testimony, it must be admitted, is not very conclusive or satisfactory as to the mode and manner in which the judgment was entered.

The witness does not say that he made a motion for judgment of condemnation, and that upon this motion the clerk was directed by the Court to enter the judgment. Nor does he say that the Court gave any order or direction whatever to the clerk. He merely asked if he was entitled to judgment, and he has reason to believe that the reply of the Court to this inquiry was communicated to one of the deputy clerks. On the other hand, Mr. Rosenthal, attorney for the appellant testifies, that it was always admitted by Mr.