Post v. Bowen

Bartol, C. J., delivered the opinion of the Court. The appellants obtained a judgment against John T. Turner and Henry T. Turner in “Baltimore City Court,” at September Term, 1868. A writ of fieri faeias having been issued thereon and returned nulla bona by the sheriff of Baltimore city, a writ of attachment was issued thereon by the same Court, directed to the sheriff of Calvert county on the 20th day of January, 1869. The case was regularly docketed against John T. Turner and Henry T. Turner on the 24th of January, 1869, for the February Term, 1869, of the Circuit Court for Calvert county, and the writ of attachment placed in the sheriff’s hands, who returned the same to the February Term, 1869, as follows: “ Laid in the hands of Thomas Bowen January 30th, 1869, for debt, interest and costs, and garnishee summoned.” The garnishee did not appear, and the case against him was continued to the May Term, 1869 ; the garnishee not appearing at that Term, a judgment of condemnation was entered against him; and on the 14th of June following, ajfieri faeias was issued thereon and returned to the July Term next following, "le vied as per schedule and sold for $50.” At May Term, 1871, the garnishee appeared by attorney, and moved to strike out the judgment, assigning in support of the motion two reasons: 1st.

Because the writ of attachment was made returnable to Baltimore City Court, and not to the Circuit Court for Calvert county, and therefore the latter Court had no jurisdiction to render judgment of condemnation. 2d. Because the judgment of condemnation was erroneously entered for an amount greater than that claimed in the writ. Whereupon a remittitur was filed by the plaintiffs’ attorneys for the sum of $173, that being the excess of the judgment over the amount claimed in the writ of attachment. ²³⁵ There is no doubt that the remittitur was a full answer to the objection based upon the error in the amount for which the judgment had been entered, even if that objection had been made in due time, such errors may always be cured in that way, and when so corrected, they furnish no ground for impeaching the judgment either on writ of error, appeal or by motion. It is the uniform practice for the Court to allow a party to release the excess, and the judgment stands for the balance.

The first reason assigned in support of the motion, is based upon the