Obrecht v. Ensor

Bond, C. J., delivered the opinion of the Court. On one and the same day, an attachment was levied on the property of George W. White, of Baltimore County, and his property was placed in the hands of receivers by the circuit court of the county, in equity, and the question of priority between the two seizures is contested in this proceeding. The receivers, with leave of the court which appointed them, intervened in the attachment suit, at law, and filed a motion to quash the attachment; and that motion was granted; and the attaching creditor has appealed. It was stated in argument that the receivers were appointed at the instance of a general creditor, and the appellant, in answering the motion to quash the attachment, stated that the receivers were appointed to take possession of White’s property because he had absconded; and it is not explained in this case how the property of an individual debtor can thus be sequestrated by a court of equity in aid of a creditor whose claim has not even been reduced to judgment.

Uhl v. Dillon, 10 Md. 500 ; Hubbard v. Hubbard, 14 Md. 356 ; Balls v. Balls, 69 Md. 388 , 16 A. 18 ; Frederick County Nat. Bank v. Shafer, 87 Md. 54 , 39 A. 320 ; Lipskey v. Voloshen, 155 Md. 139, 143 , 141 A. 402 . But the action of the court of equity could not, on that ground, be reviewed collaterally in this proceeding. Dugan v. Mayor, etc., of the City of Baltimore, 70 Md. 1, 7 , 16 A. 501 ; Emmert v. Middlekauff, 118 Md. 399 , 84 A. 540 .

The attachment was issued shortly after 9 o’clock in the morning, charging; that White, the debtor, had absconded. The writ issued by the clerk, and his subsequent schedule of goods attached, were on forms reciting that the debtor was a non-resident, but this inconsistency did not affect the right to the attachment on the proceedings taken. The creditor is required only to maintain his own allegation and contention that the debtor had absconded. The sheriff of the county promptly sent his deputies to two farms to levy on White’s ³⁹⁴ goods.

There was a judgment outstanding against White, held by a stranger to these proceedings, and in an earlier execution upon that judgment there had been levies on one farm on the day before, and on another farm on the same day. At the first farm, the deputy sheriff, under the Obreeht attachment, viewed the goods about midday, or 1 o’clock, on the day on which the attachment was sued out, and as he proceeded prepared his schedule of the goods levied upon. He ■had at the outset asked to be permitted to see the wife of the debtor, but was delayed by an answer that she was under the care of a physician and could not be seen; and only after the schedule had been finished, after 3 o’clock, did he lay the attachment in her hands, as garnishee. At the second farm, having just finished on that morning’ the levy by way of execution on the stranger’s judgment, the deputy did not repeat his visit, but merely prepared a second schedule for the Obreeht attachment, too.

The receivers filed their bond after their appointment, at 2 o’clock p. m., while the deputy sheriff was levying on the property for the attachment. Under the rule adopted in Maryland, the goods did not pass into their custody upon the filing of their bond, but only upon their actually taking possession. Farmers’ Bank v. Beaston, 7 G. & J. 421 ; Everett v. Neff, 28 Md. 178 , 187; Miller, Equity Procedure, sec. 616. There is testimony that before the bond was filed, and while representatives of Obreeht, the attaching creditor, were visiting the farms, a representative of the receivers was on the place taking charge; but as there were no qualified receivers at that time, this action would seem to have been without legal effect.

There is no evidence to show when the receivers took possession after their appointment and qualification. We conclude, then, that if the attachment was validly sued out, it was levied before the receivers took possession of the assets. For the receivers it is contended that the attachment was invalid because the debtor was not, in fact, an absconding debtor, and because the voucher filed with the affidavit of the attaching creditor was legally insufficient, in