Martin G. Imbach, Inc. v. Deegan

Bruñe, C. J., delivered the opinion of the Court. This suit was brought by Martin G. Imbach, Inc. (“Imbach”), the appellant in this Court, against Joseph C. Deegan, the Sheriff of Baltimore City (the “Sheriff”), appellee here, to recover poundage fees alleged to have been illegally collected by the Sheriff. The present appeal (No. 51, October Term, 1955) is from a judgment for costs for the defendant entered by direction of Chief Judge Niles to give effect to the ultimate ruling previously made by Judge Cullen, which sustained the defendant’s demurrer to the plaintiff’s amended declaration, without leave to amend. The case first came before this Court as No. 171 at the October Term, 1954, on an appeal by Imbach, a cross-appeal by the Sheriff, and a motion by the Sheriff to dismiss Imbach’s appeal on the ground that it was not taken within the time allowed for appeal.

Both appeals and the motion were fully argued. It developed during the argument in this Court that no judgment for costs for the defendant had been entered in the trial court. Hence there was no final judgment of that court to support Imbach’s appeal, and that appeal was therefore dismissed. Commonwealth of Pennsylvania v. Warren, 204 Md. 467 , 105 A. 2d 488 ; O'Keefe v. Scott, 198 Md. 310 , 83 A. 2d 860 ; Montgomery County Welfare Board v. Donnally, 195 Md. 442 , 73 A. 2d 505 ; Goodman v. Clark, 193 Md. 521 , 69 A. 2d 496 ; Penny v. Maryland State Police, 186 Md. 10 , 45 A. 2d 741 .

The Sheriff’s cross-appeal in No. 171 likewise failed for want of a final judgment and was dismissed; and the ground upon which his motion to dismiss Imbach’s appeal in No. 171 was based was also untenable for the same reason. After the question of the lack of a final judgment had been raised the appellee Sheriff filed a petition in the Superior Court asking that the docket entries of Decern ¹²⁰ ber 30, 1954 and February 9, 1955 be corrected by adding a judgment for costs for the defendant. The appellant Imbach filed an answer assenting to a change in the February 9, 1955 entry. After a hearing the petition was denied by Chief Judge Niles, who directed, instead, that a judgment for the defendant for costs be entered on the date (June 6, 1955) upon which the petition was heard and denied.

The judgment so entered merely gave effect to Judge Cullen’s final ruling on the demurrer to the amended declaration. The present appeal by Imbach is from that judgment. By agreement between the parties the briefs and arguments submitted in No. 171 of the October Term, 1954, are resubmitted on this appeal without further briefs or argument; and on that basis the present appeal has been advanced for determination. Although the questions raised by the Sheriff’s cross-appeal and motion to dismiss do not now require decision, we think that some comment on the proceedings which gave rise to them is appropriate.

On December 30, 1954, the trial Judge sustained the defendant’s demurrer to the plaintiff’s amended declaration without leave to amend, and duly so advised counsel for both parties by a letter of that date. On January 3, 1955, one of the attorneys for the plaintiff (Mr. Taylor) called upon the trial Judge to ask the reasons for his ruling and to request that he change the ruling from one denying leave to amend to one granting such leave. The trial Judge stated that he would do so and that he would later file a summary of the reasons for his ruling on the demurrer. He filed a memorandum opinion on February 9, 1955, which omitted any grant of leave to the plaintiff to amend.

Plaintiff’s counsel then made a second visit to the Judge (on February 14th) and reminded him of the previous conversation, and the Judge thereupon amended his opinion by adding leave to amend. It was not until after this change had been made and filed that the Sheriff or his counsel was notified of any change, actual or proposed, in the ruling of December 30th. It is evident that both parties regarded the ruling of ¹²¹ December 30th as a final judgment and believed that the thirty day time limit for an appeal ran from that date. It is equally clear that if the plaintiff’s request had been made by a written motion (as would certainly have been appropriate), a copy thereof would have been required to be served on opposing counsel.

(General Rules of Practice and Procedure, Pt. II, V (Service of Pleadings and Other Papers), Rules 1 (a) and 1 (c).) The fact that the request was oral did not dispense with the need for notice as a matter of fairness as well as propriety. We have no doubt that the omission of notice on the part of plaintiff’s counsel was unthinking rather than deliberate and that the Judge’s action in granting the plaintiff’s request for a change in the ruling without any showing that the defendant’s counsel had been notified of the request was also inadvertent. The change in the ruling was, however, substantial and clearly it should not have been made without notice to the defendant’s counsel of record and an opportunity to object and be heard, if such counsel so desired.

The situation became somewhat further confused after the granting of leave to amend because counsel for the plaintiff, after studying the trial court’s opinion which was filed on February 9th, reached the conclusion that any new amendment of the declaration would serve no useful purpose and thereupon filed a petition (of which the defendant’s counsel were notified) seeking to have the docket entries “corrected” by striking out the order of December 30, 1954 and by having it in practical effect restated nunc pro tunc as of February 9, 1955. * The defendant answered and opposed the petition on the grounds (1) that the order of December 30th had become enrolled prior to February 9th and was beyond the revisory power of the court and (2) that the proceedings subsequent to December 30th were not binding on the defendant since he did not participate therein and had no knowledge or ¹²² notice thereof. The court entered an order on February 28, 1955 in accordance with the plaintiff’s petition. This was the order from which the appeal and cross-appeal were taken in No. 171 at the October Term, 1954, and those appeals have been dismissed because of the lack of a final judgment. We now approach the merits of the controversy.

Since the case was heard upon a demurrer to the amended declaration, we must turn to that declaration for a statement of the facts. The declaration shows that the Clerk of the Superior Court gave to the defendant, as the Sheriff of Baltimore City, for execution a writ of fieri facias issued in a named case in that court, and then alleges that “the Defendant, and his Deputies did not execute the said writ, as the judgment upon which it was issued and all costs were paid upon the service of the writ, whereupon the Defendant made no levy, schedule, or return of goods levied upon, and for that in collecting costs, the said Defendant illegally demanded and collected, over the protest of the Plaintiff, poundage fees in the amount of $636.85, inasmuch as he had not earned them in accordance with the statute made and provided for such fees, and the said Defendant has refused to return the said sum of $636.35 illegally collected as poundage fees, although demand has been made therefore.” (Sic.) Strictly, these are the only facts properly alleged. Of course, only well pleaded facts, and not the pleader’s conclusions of law, are admitted by the demurrer. In this case and largely because of the allegations as to what happened after the deputy “served” the writ, the allegation that he did not “execute” it seems to fall into the category of a conclusion of law.

The rather scanty facts expressly stated in the declaration may be somewhat amplified by inferences from them. Thus the learned trial Judge stated in his memorandum opinion that “It is clear that the presence of the sheriff ready to take possession and with the plaintiff’s chattels within his power and control, was the coercing factor which satis ¹²³ fied the judgment of the Court.” The judgment referred to is, of course, that for the enforcement of which the writ was issued. (It was a judgment of the Superior Court of Baltimore City which had been affirmed on appeal by this Court three days before the writ was issued. See Martin G. Imbach, Inc. v. Tate, 203 Md. 348 , 100 A. 2d 808 .) We do not regard it as pressing inferences too far to conclude — and we may add that statements and admissions in the briefs and oral arguments before us indicate that such conclusions are not in dispute— (1) that when the Sheriff’s deputy went to Imbach’s place of business there were on the premises chattels belonging to Imbach of a value at least equal to the full amount of the judgment (including interest and costs) and the full amount of the poundage fees demanded; (2) that such property was visible to the deputy; (3) that there was no obstacle to his taking actual, physical possession of such property; (4) that he threatened to take such actual possession, but at Imbach’s request and because of the payments next referred to, did not do so; (5) that instead of making such actual seizure he received payment of (a) the full amount of the judgment (including interest and costs) for the enforcement of which the writ of fi. fa. was issued and (b) the full amount of the poundage fees to which the Sheriff would be entitled for execution of the writ * ; and (6) that Imbach paid the latter amount under protest and to avoid actual seizure of its property.

These two questions arise on the above state of facts : 1. Is the Sheriff entitled to poundage fees where he serves a writ of fi. fa. on a judgment debtor and, as a result thereof, but without making any actual seizure, return or sale of property of the debtor, collects the full amount of the judgment? 2. If the Sheriff is not entitled to such fees, does payment thereof by the judgment debtor under protest and in order to avoid a threatened seizure of his property con ¹²⁴ stitute a “voluntary” payment, for which no recovery can be had? 1. Is the Sheriff Entitled to Poundage ?

The Sheriff relies upon Code (1951), Article 36, Section 25 as establishing his right to poundage. At common law no such right existed. In England the matter was dealt with by statutes passed in 1444,1587 and 1716; but none of these statutes has been regarded as adopted or in force in Maryland. Cape Sable Company's Case, 3 Bland 606 , 631.

In that case Chancellor Bland in an interesting and exhaustive opinion reviewed English and Maryland statutes and decisions dealing with the sheriff’s right to poundage fees and the persons liable therefor. Neither the Cape Sable Company’s Case nor any other Maryland case to which we have been referred directly determines the precise question with which we are confronted — whether or not an actual seizure of property is essential to the sheriff’s right to poundage. The history of statutes in Maryland dealing with poundage fees or fees of like nature (even though not designated as poundage) goes back to provincial times, but involves relatively few Acts of the General Assembly. We shall refer to some of these statutes briefly later on.

The present statute, relied upon by the Sheriff, reads as follows: “Art. 36. Fees of Officers. “Section 25. The Sheriff shall have as poundage fees computed upon the value of the personal property or the amount of the debt whichever is less for levying an execution at the rate of seven and a half per cent on the first Twenty-six Dollars and Sixty-seven Cents and at the rate of three per cent on the residue, but if execution be laid on any interest in lands only one-half of the poundage fees shall be charged, and if laid upon lands and the lands be not sold by the Sheriff he shall charge only one-fourth of the poundage fees aforesaid and if upon personal property and the same be not sold by the Sheriff ¹²⁵ he shall charge three per cent as mentioned above. Provided, however, that in addition to the above fees, the Sheriff of Baltimore City and the Sheriff of Baltimore County shall receive for his services in serving each writ of Fieri Facias a fee of One Dollar and Fifteen Cents ($1.15), and the Clerk of the Court shall not issue said writ until the person, firm or corporation ordering the issuance of the same shall pay said fee to said clerk, which fee shall be paid to the Sheriff when said writ was delivered to him.” Poundage fees are ordinarily payable by the defendant agai0nst whom execution is issued.

The Cape Sable Company's Case, supra; Howard v. The Levy Court, 1 H. & J. 558 ; Eakle v. Smith, 24 Md. 339, 362 ; Gilmor v. Brien, 1 Md. Ch. 40 . There is no claim that this general rule is not applicable in this case. The two cases last cited and Gurley v. Lee, 11 G. & J. 395 , also show that poundage fees are not a part of the costs of suit. Since the adoption of Section 2 of Chapter 59 of the Acts of (November) 1790, the rates at which poundage fees are to be computed on lands taken and sold upon execution have been one-half of the rates applicable to personal property so taken and sold.

Except for a period of two years (from 1941 to 1943) there has also been this difference between executions against real and personal property: that if lands were not sold, poundage rates were only one-half of what they would have been if there had been a sale; but in the case of personal property, no such reduction was or is made because of there not being any sale. (Acts of 1941, Ch. 314; Acts of 1943, Ch. 331). Thus, insofar as personal property is concerned, the early cases holding that the absence of a sale does not impair the sheriff’s right to poundage are fully applicable. Among these cases are The Cape Sable Company's Case and Gurley v. Lee, both cited above.

There is thus no question of the amount of the poundage fees if they are payable at all; and the vital question ¹²⁶ on this phase of the case is, what constitutes execution of the writ? Before going further we may pause to observe that the term “poundage” is derived from the name of British units of weight or money and means “a tax, commission, rate, etc. of so much per pound sterling or pound weight” (New Century Dictionary) or “the percentage of a sale allowed to a sheriff or other officer who is authorized to sell goods on execution or foreclosure of a lien” (Radin’s Law Dictionary) and thus does not connote an impounding. Whether or not an actual taking of possession of the defendant’s property is essential to establish a sheriff’s right to poundage fees accordingly depends upon other terms of the statute. If we go back to the provincial statute of 1763 (Ch. 18), we find that fees in the nature of poundage fees, though not so designated, were provided for the levying of execution, and Acts of the General Assembly of the State passed in 1777, 1778 and 1779 dealt with the subject.

Chapter 25 of the Acts of (November) 1779 provided for the fees to be charged by the sheriff for various services. It provided that his fees for attachments, replevins and fi. fas. should be the same as upon execution. Section 5 of this Act limited the poundage fees to be exacted upon executing a writ of capias ad satisfaciendum (execution against the person of the defendant) to the real amount of the debt. Section 6 made this limitation applicable to “the service of any execution for money or tobacco” and also fixed the rates for poundage fees.

Maddox v. Cranch, 4 H & McH. 343; Howard v. The Levy Court, 1 H. & J. 558 . Chapter 59, Section 2 of the Acts of 1790, changed somewhat the rates at which poundage fees were to be computed. No changes relating to poundage fees bearing upon the question here at issue appear to have been made between 1790 and the codification of the Public General Laws by the Code of 1860. Section 27 of Article 38 of that Code continued to provide for “the same fees as on execution” for “all goods and chattels which any sheriff ¹²⁷ shall attach and take into his