Sanborn v. Mullen

Bryan, J., delivered the opinion of the Oourt. Sanborn and Mann on the sixteenth day of November, 1892, caused an attachment on original process to be is ⁴⁸¹ ■sued out of Baltimore City Court against Joseph Mullen and his wife. A writ of summons was issued at the same time against both the defendants, which was executed and returned. On the nineteenth of November an appearance was entered for them, and a motion to quash the attachment was filed.

A suit on the same causes of ■action had been brought by the plaintiffs on the fourth day of November, and was pending between the same parties, when the attachment proceeding was instituted. The Court required the plaintiffs to elect which of these suits they would prosecute; and on December 27th the plaintiffs elected to proceed with the attachment, and dismissed the previous suit. On the next day the plaintiffs moved for a judgment by default for want of a plea. The Court overruled the motion for judgment by default and quashed the attachment.

The plaintiffs appealed from the order overruling the motion for a judgment by default. It will be seen that no appeal has been taken from the order which required the plaintiffs to elect. We shall,' therefore, express no opinion upon it. The motion for judgment by default was grounded on the provision of the local law of Baltimore, contained in Article 4, sec. 167, Public Local Laws; and if that section is applicable to this case the motion ought to have been granted.

The attachment proceeding is authorized by the Act of 1864, chapter 306, now embodied in the Code of Public Gfeneral Laws, as Article 9, sections 35 to 41 inclusive. It requires a writ of summons to be issued against the ■defendants “as is usual in actions at law;” and by ■section 41, it is directed