Sarlouis v. Firemen's Insurance

Bowie, J., delivered the opinion of the Court. The appellant having obtained a judgment in the Superior Court of Baltimore City, on the 6th of January, 1814, against M. Siar, Catharine Hopkinson and Dr. M. Hopkinson, for $421.28, interest and costs, sued out thereon, on the 2lth of May following, an attachment, returnable on the second Monday of October of the same year, which was returned by the sheriff as follows: “Laid in the hands of the Firemen’s Insurance Company of Baltimore, by .service on Henry P. Duhurst, President,-on the 21th May, 1814, at 4.51 o’clock, P. M., in presence of Wm. Robertson, and garnishee summoned. Also, summoned Miss M. Siar and Dr. M. Hopkinson, defendants, ‘mortuus est’ as to Catharine Hopkinson. “Augustus Albert, Sheriff.” No appearance being entered on the return day by the garnishees, judgment of condemnation nisi was rendered against them.

On the 28th of October, 1815, the appellant filed a petition setting out the previous proceedings in the case, and alleging that the corporate name of the garnishee is, “ The President and Directors of the Firemen’s Insurance Company of Baltimore City,” and praying process to enforce said judgment against said corporation by its proper corporate title, etc. On the 11th of November, 1815, the President and Directors of the Firemen’s Insurance Company, the sup ²⁴³ posed garnishee in the above cause, moved the Court to strike out the judgment against it, because it says: “ 1st. That at the time of the laying of said attachment, as alleged, it had no credits or other assets whatsoever of said Hopkinson in its hands, nor hath or had since, and hath not any now. “ 2nd. Because no such attachment was ever served, or laid in its hands in fact; no notice was ever given thereof to it by the sheriff as alleged, nor by any other person whatsoever, nor had this garnishee any notice whatever of said case nor any proceedings whatever therein, until the service of the order of the 28th of October last, upon its President within a few days past. “3rd. That it is taken by surprise, and that said judgment was obtained by a return of the sheriff irregularly made, and under a mistake as to such pretended service of said writ, which was not in fact served on it.” Depositions having been taken by the parties, in support of and against the motion to strike out, it was, by the Superior- Court of Baltimore City, on the 12th of January, 1876, ordered that the judgment he stricken out, etc., from which order this appeal is taken.

No objection was raised below by the appellee on account of misnomer, as is suggested in the appellant’s brief; on the contrary, the appellee, by its appearance and motion, virtually waives that point. The grounds of relief are practically two, — the absence of assets in the garnishee’s hands liable to attachment, and want of notice or service. If the appellee had proper notice, the want of funds could not he inquired into, because the failure to plead, after due notice, is an admission of assets. The garnishee would not be permitted to avail himself of his own remissness to repel a presumption of law growing out of his silence. ²⁴⁴ The primary inquiry therefore, in legal order, is the second objection, which technically amounts to a charge of false return against the