Potomac Steamboat Co. v. Clyde

Bartol, C. J., delivered the opinion of the Court. At the suit of the appellants an attachment on warrant was issued against Thomas Clyde, a non-resident, returnable to January Term of the Superior Court, 1870 ; the writ was laid in the hands of the Powhatan Steamboat ¹⁷⁸ Company as garnishee, and certain property of Clyde, the defendant, was attached per schedule, consisting of forty shares of capital stock, owned by him, of the Powhatan Steamboat Company. At the same, time an action of assumpsit was brought by the same plaintiffs against Clyde, and a summons issued thereon returnable to the same term. The summons was returned non est, and there being no appearance for garnishee, judgment of condemnation nisi was entered, which became absolute, by the expiration of the term. .

In January, 1871, after the lapse of a year and a day, a writ of fieri facias was issued upon the judgment. On the 6th day of February following, Clyde filed a petition and motion to set aside the judgment of condemnation and quash the execution; this motion was on the same day overruled by the Superior Court, and on the following day, Clyde, the defendant, appealed from the judgment of condemnation, and also from the order of the Superior Court overruling his motion. . , On the hearing of the appeal, this Court reversed the order of the Superior Court overruling the motion, and remanded the case for a new trial, “in order that the parties might have an opportunity to produce testimony to sustain or disprove the averments contained in the petition, and the motion be heard and disposed of on its merits.” Powhatan Steamboat Co., Garn. vs. Potomac Steamboat Co., &c., 36 Md., 238 . After the case had been remanded, the appellee volunr tarily dismissed his motion to strike out the judgment, &c., for the reason, as alleged, that the stock attached had become worthless. Whereupon the appellants, plaintiffs below, filed their petition in the Superior Court,