Odend'hal v. Devlin

Bartol, C. J., delivered the opinion of the Court. This suit was instituted by the appellee to recover a debt due the plaintiff for merchandize sold to Maria T. Odend’hal a feme covert, sole trader. ⁴⁴⁴ The proceeding was by attachment under Art. 45, sec. 7, of the Code, and is in all respects conformable to the provisions of the statute, as construed in Brent vs. Taylor and Marks, 6 Md., 58 . No objection is made to the proceeding as in any respect informal or irregular. The writ was laid in the hands of the appellant Sebastian, the husband of the debtor, and he was summoned as garnishee; and the first question to be considered is whether in a proceeding of this kind against the separate property of the wife, the husband can be made garnishee.

This question is raised by the demurrer to the third or additional plea, and by the third prayer of the appellant. The positions taken by the appellant, as stated in his brief, are 1st. “In' order to entitle the plaintiff to recover against a garnishee, the defendant must be able to recover against the latter; as the plaintiff in attachment is only subrogated to the rights of the defendant, and if the defendant could not sue the garnishee at law the plaintiff cannot,” and 2nd. That as it was decided in Barton vs. Barton, 32 Md., 224 , that a wife cannot sue her husband at law, it follows that in a proceeding by attachment against her separate property, the husband cannot be made garnishee. It is the general rule that the rights of the attaching creditor to recover against the garnishee, depends upon the subsisting rights between the garnishee and the debtor in the attachment, and the test of the garnishee’s liability is that he has funds, property or credits in his hands belonging to the debtor, for which the latter would have a right to sue.

In Myer, et al. vs. Liverpool, London, and Globe Ins. Co., 40 Md., 595 , Bittenger & Brothers, citizens of Illinois, were debtors to the plaintiff a citizen of Maryland, and an attempt was made by the latter, to subject to the process of garnishment a debt due to Bittenger & Brothers by a foreign insurance company, upon a contract ⁴⁴⁵ of insurance made in Illinois upon property situated in that State. The Act of Assembly, 1868, ch. 471, sec. 211, provided “that a suit against a foreign corporation exercising franchises in this State, may be brought by a resident of this State, for any cause of action, and by a plaintiff not a resident of this State, when the cause of action has arisen or the subject of the action shall he situated in this State.” It was held that as the Insurance Company could not, under the statute, he sued in Maryland by Bittenger & Brothers upon the contract of insurance made in Illinois, where the property insured was situated, the Company could not he held to answer as garnishee in Maryland for any liability upon the same contract of insurance. In that case we said, it is well settled that the plaintiff in attachment, as against the garnishee, is subrogated to the rights of the debtor, and can recover only by the same right, and to the same extent, as the debtor might recover if he were suing the garnishee.

This general proposition must be understood as applicable to the case then under consideration. There are some exceptions to this general rule, as for instance if the debtor has fraudulently conveyed property to another, the grantee may be charged as garnishee, though the fraudulent grantor could not maintain a suit. So an attachment may be laid in the hands of a garnishee, before the debt owing by the latter to the .debtor in the attachment has matured. Drake on Attachment, secs. 452, 464.

It has been decided that equitable interests, which can ordinarily he enforced in a Court of equity may be attached. Campbell vs. Morris, 3 H. & McH., 535 ; Cecil Bank vs. Snively, 23 Md., 253 . In Barton vs. Barton before cited, it was held that a married woman cannot maintain a suit at law against her ⁴⁴⁶ husband, because to permit such suits would be contrary to public policy, and inconsistent with the close