Mervin L. Blades & Son, Inc. v. Peninsula Bank

Weant, J., delivered the opinion of the Court. ⁶³¹ By an Order of this Court, issued March 21,1979, the cases now before us have been consolidated for purposes of appeal. Each involves a judgment against the same defendants, although for different amounts; each involves the issuance of a Writ of Garnishee-Attachment to the same Garnishee-Appellee, Peninsula Bank, among others, returnable to the first Monday in November, 1978. On October 27, the appellee, in response to each Writ of Attachment, filed a plea entitled “Garnishee Confession of Assets”; each plea was essentially a plea of nulla bona in that the appellee confessed no assets belonging to the defendants. Thereafter, appellant, in each case, filed Interrogatories in Attachment directed to the appellee pursuant to Maryland Rules G56 and 417, which in turn were answered by the appellee.

Finally, on December 27, 1978, the appellee filed Motions to Quash Attachment and For Payment of Costs and Attorney’s Fees. These motions requested that in each case the Writ of Attachment be quashed pursuant to Maryland Rule G51, and that attorney’s fees be fixed and costs assessed against the appellant pursuant to Maryland Rule G52d. On February 13, 1979, the Circuit Court for Wicomico County ordered that the Writ of Attachment in each case be quashed and that attorney’s fees in the amount of $250.00 per case be awarded. On appeal the appellant raises two contentions.

First, the circuit court erred in quashing the two writs of attachment since there were no defects in the respective judgments and no jurisdictional problems regarding the garnishee on the pending attachment cases. Second, the circuit court erred in awarding attorney’s fees. The Order quashing the Writs of Attachment and awarding attorney’s fees must be reversed. Maryland Rule G51a states: “A defendant or garnishee may file a motion within the time required by Rule 307 (Time for Defendant’s Initial Pleading) praying that the writ be quashed and set aside, and thereupon the court may order the sheriff to produce the writ and the proceedings thereunder in court.” ⁶³² Maryland Rule 307a, the provision incorporated into Rule G51a, supra, provides, in pertinent part, as follows: “The defendant in any action shall file with the clerk his initial pleading within fifteen days after the return day to which he is summoned____” As a general rule a motion to quash will be determined to have been timely filed if filed within fifteen days after the return day to which defendant has been summoned.

Accordingly, in the cases now before us, November 21 was the last day on which the appellee could be said to have filed timely Motions to Quash, unless the bases for such motions are found to fall within an exception to the general rule. In Cole v. Randall Park Holding Co., 201 Md. 616, 625-26 , 95 A. 2d 273, 278 (1953), the Court of Appeals stated “. . . that a motion to quash on fundamental or jurisdictional grounds can be filed either by the garnishee or by the defendant, after pleas by the garnishee. Campbell v. Morris, 3 H. & McH. 535 ; Bruce & Fisher v. Cook, 6 G. & J. 346 ; Stone v. Magruder, 10 G. & J. 383 -387; Boarman v. Israel & Patterson, 1 Gill 372 ; Lambden v. Bowie, 2 Md. 334; Spear v. Griffin, 23 Md. 418 -30; Evesson v. Selby, 32 Md. 340 ; Powhatan Steam Co. v. Potomac Co., 36 Md. 238 and the companion case, Potomac Steamboat Co. v. Clyde, 51 Md. 174 ; Cromwell v. Royal Canadian Ins. Co., 49 Md. 366 ; Coward v. Dillinger, supra ( 56 Md. 59 ); Johnson v. Stockham, 89 Md. 368 , 43 A. 943 ; U. S. Express Co. v. Hurlock, supra ( 120 Md. 107 , 87 A. 834 ); Indemnity Co. v. Cosgriff, 144 Md. 660 , 125 A. 529 ; First National Bank of Federalsburg v. Equitable Life Assurance Society, 157 Md. 249 , 145 A. 779 .

The holdings are summarized aptly by Hodge & McLane on Attachment in Maryland, Sec. 94: ‘A motion to quash is a proceeding in the nature of a petition to the Court,