Maryland Casualty Co. v. Greenberg

Sloan, J., delivered the opinion of the Court. On February 1st, 1928, a confessed judgment was entered in the Baltimore City Court against the Block Sand Blasting Company, a corporation, and David S. Block, individually, for $491.50, in favor of Minnie Greenberg, trading as E. Shields Company, the- appellee. On the same day an attachment was issued on the judgment and laid in the hands of three garnishees. On the following day, February 2nd, a bond to dissolve the attachment was filed with the clerk of that court and, as appears from the docket entries, “attachment dissolved accordingly.” On March 12th, 1928, a motion was made to strike out the judgment, the judgment was opened for the purpose of trial, the judgment meanwhile to continue “as a valid and subsisting judgment * * * and not vacated unless and until it shall be finally determined by trial that the plaintiff is not entitled to- said judgment.” On the trial of the case the judgment was again entered in favor of the plaintiff for the original amount, $491.50.

The appellee then made demand on the appellant for the amount of ⁴² the judgment and costs and, upon its refusal to pay, suit was brought on the bond, on which the appellant was surety. The contention of the appellee is that the bond is a statutory bond to dissolve an attachment under the provisions of section 19, article 9 of the Code, and the measure of liability is the amount of the judgment, interest and costs recovered by the plaintiff from the defendant. This was the view of the trial court, and from a judgment in accordance with this theory the surety company appealed. The appellant contends: (1) That the bond sued on is not a statutory bond; (2) that there was no delivery of the bond by the defendant to the plaintiff and the filing of the same by the defendant with the clerk of the court was not' a delivery; and that there was no waiver of the delivery by the appellant; (3) that there was no right of recovery by the plaintiff unless judgment was recovered by her against the garnishees, and no right to recover from the appellant the amount of a judgment of the plaintiff against the defendant; and (4) that if a recovery be proper at all, assuming the bond to be a common law bond, the plaintiff was only entitled to recover nominal damages.

There is one exception in the record, and that is to the action of the trial court in refusing the appellant’s first eight prayers, the ninth having been conceded. The plaintiff, appellee, offered two prayers, of which one was refused and the other withdrawn. The bond in foim appears to be for the dissolution of an attachment on original process provided for by section 19 of article 9 of the Code, when in fact it was intended to be g bond to dissolve an attachment on a judgment already entered against credits in the hands of three garnishees. The condition of the bond was “that if the said defendant shall satisfy any judgment that shall be recovered in said case against them then the said obligation shall be void; else to be and remain in full force.” There could not be a judgment recovered against the defendants, as there was already a judgment confessed by them, and the only attachment to which the bond could apply was on that confessed judgment, which ⁴³ had been laid in the hands of garnishees, and if there was an attachment to be dissolved, that was it.

The bond authorized by the statute could only serve to dissolve an attachment when an appearance had been made by all defendants in the short note case. In West v. Wood Company, 140 Md. 514, 520 , it is said that the language of the statute is “peculiarly appropriate” to an attachment on original process. “A bond given to dissolve an attachment, and a judgment recovered in the short note case, constitutes a cause of action upon which suit may be properly instituted against the obligors in the bond, under the rule day act, applicable to Baltimore City. The judgment in the short note case fixes the amount to be paid under the terms of the bond.” Hodge and McLane on Attachment in Maryland, sec. 225. The bond filed in this case cannot be construed to serve the purpose intended by section 19 of article 9 of the Code,, because that evidently was intended to dissolve an attachment on original process and to secure any judgment which might thereafter be recovered by the plaintiff in the attachment against the defendant, and cannot, therefore, be treated as a statutory bond.

If, however, it serves the purpose intended, and was executed and delivered by the obligors, and violated no statute, and is not against public policy (and we know of no such violation), it may be construed as a common, law bond (9 C. J. 27), and the same construction made as in any other contract in writing. Br andt on Suretyship and Guaranty (3rd Ed.), secs. 31, 105 (note 52), and 615 (note 30); Ehrlich v. Schlamberg, 119 N. Y. Supp. 337 . The appellant, by the record, admits the execution of the bond, but denies the delivery and contends, which is not denied, that the bond was filed with the clerk of the court and not delivered to the plaintiff, and that delivery to the clerk of a common law bond is not delivery to the plaintiff. The appellant pleaded non esl factum, under which the plaintiff must prove execution and delivery, or possession, which is prima facie evidence of delivery.

Keedy v. Moats, 72 Md. 325, 328 ; Scaggs