McCoy v. Boyle

Le Grand, C. J., delivered the opinion of this court. This was an attachment on warrant, issued out of the Court of Common Pleas of Baltimore city, at the suit of the appellee, against the goods, chattels, credits, &c., of Silas H. Dewey, upon a promissory note for three hundred and twenty-five dollars, due upon the 5th of August 1853. The affidavit of the plaintiff is dated the 23rd of September 1853, and the warrant of the magistrate, directed to the clerk of Baltimore county court, is dated as of the same day. The attachment bears date the 22nd day of September, a day anterior to the date of the warrant.

It was laid in the hands of several persons, among the rest, in those of McCoy; he not appearing, a judgment was had against him by default. After giving the necessary bond, the appellee sued out a writ of fieri facias. The appellant, McCoy, then appeared and moved to strike out the judgment and quash the writ of attachment. This motion the court overruled, from which ruling, as well as from the order of the court, directing the amending of the date of the writ of attachment from the 22nd to the 23rd of September, this appeal is taken.

We concur in the ruling of the court below. The date of the writ was manifestly a clerical error. It professes to be founded on the warrant of the justice, and was so in fact issued. This fact was apparent on tire records of the court, and it was not only competent to but the duty of the court, to order the amendment of the date of the writ.

In support of the motion to strike out the judgment, and to quash the writ of attachment, it was insisted on behalf of the appellant, first, that the affidavit of the appellee did not show that the plaintiff was a citizen of one of the United States, and second, that the return of the sheriff did not, in words, show, that the garnishee had been summoned. ³⁹⁶ We think both of these objections are answered by the decision in the case of Boarman vs. Israel & Patterson, Ex'rs, 1 Gill, 372 . At page 381 of the report of that case, the court, referring to the absence of the averment of the citizenship of one of the plaintiffs, say, that although the point had not been made below, yet, nevertheless, notwithstanding the act of 1825, chapter 11.7, it is a fit subject of review in this court. They then proceed to show, that although under previous legislation such omission would be fatal, yet, such is not the case since the passage, of the act of 1834, ch. 79, sec. 1. They say, Gby this act of Assembly, under the circumstances in which this case stands before us, we think the appellant cannot claim a reversal of the judgment, or that the proceedings on which jt is founded be quashed, by reason of the omission of the averment of citizenship as to one of