Sharpless Separator Co. v. Brilhart

Boyd, C. J., delivered the opinion of the Court. The appellant issued an attachment on a judgment, it had obtained against. Harry L. Pickett, being returnable on the 2nd Monday of February, 1915. The Sheriff of Carroll County, to whom it was directed on January 30th, 1915, made the following return: “Laid in the hands of Charles Brilhart, Sec’y-Treasurer of Mutual Fire Insurance Company of Dug Hill, Carroll County, Md., and him summoned December 28th, 1914, at 5 P. M. And December 28th, 1914, at 5 P. M., laid in the hands of Harvey L. Frizzell, agent of the Mutual Fire Insurance Company of Dug Hill, Carroll County, Md., and him summoned.” On May 11th, 1915, an order was filed with the Clerk of the Court as follows: “Mr. Clerk: Please enter my appear ⁸⁴ anee for Charles Brilhart, agent, and Harvey L. Frizzell, agent, Dug Hill Fire Insurance Company.

(Signed) Huy W. Steele.” On May 24th, 1915, Harvey L. Frizzell filed ah answer as follows: “In the Circuit Court for Carroll County, Trials 30, May Term, 1915. Sharpless Separator Company, Plaintiff, vs. Charles Brilhart, Agent; Harvey L. Frizzell, Agent; Dug Hill Fire Ins. Co., Garnishee of Harry L. Pickett, Defendant. “Farmers’ Mutual Fire Insurance Company of Dug Hill, Carroll County, Maryland, Garnishee in the above entitled case, for answer to the writ of attachment laid in the hands of Charles Brilhart, Secretary and Director, and Harvey L. Frizzell, Director and Agent of Farmers’ Mutual Fire Insurance Company of Dug Hill, Carroll County, Maryland, generally known as Dug Hill Fire Insurance Company, says: That at the time of the laying of the attachment in the hands of Charles Brilhart, Secretary and Director, and Harvey L. Frizzell, Director and- Agent, of the said Farmers’ Mutual Fire Insurance Company of Dug Hill, Carroll County, Maryland, that it had and has a check for the sum of Two Hundred Dollars and Seventeen Cents, in the hands of Harvey L. Frizzell, Director and Agent, which check was payable to Harry L. Pickett at the time of the laying of said attachment, being the balance of money in a settlement of a fire due Harry L. Pickett from the Farmers’ Mutual Fire Insurance Company of Dug Hill, Carroll County, Maryland, which sum of Two Hundred Dollars and Seventeen Cents, Harvey L. Frizzell, Director and Agent of the Farmers’ Mutual Fire Insurance Company of Dug Hill, Carroll County, Maryland, assent to a judgment for this amount.” That is signed by “Harvey L. Frizzell, director and agent of Farmers’ Mutual Fire Insurance Company of Dug Hill, Carroll County, Maryland.” ⁸⁵ On June 1st, 1915, Charles Rrilhart filed in the same case a motion to quash the return of the sheriff, and assigned as the reasons, (a) that it was never served on him personally, if intended against him in his individual capacity, and (b) that it was not served on the company by personal service upon an officer thereof, and no copy of process was left with any officer thereof as required by law. On the same day that was filed (June 1st) the plaintiff asked leave to the sheriff to amend his return, and on November 19th that motion was granted and the sheriff filed an amended return aa follows: “'1914, Dec. 28th—5 P. M. Laid in the hands of the Farmers’ Mutual Fire Insurance Company of Dug Hill, Carroll County, Maryland, a corporation, by service of this writ upon Harvey L. Frizzell, director and agent, of said company and it summoned,” and “1914, Dec. 28th, 4 P. M., laid in the hands of the Farmers’ Mutual Fire Insurance of Dug Hill, Carroll County, Maryland,, a corporation, by reading this writ over the telephone to Charles Brilhart, secretary and treasurer of said company.” Both of those returns were signed by Robert L. Davis, Sheriff of Carroll County.

On the same day (November 19th, 1915,) Mr. Steele appeared “'for sole purpose of making motion” and moved the Court to strike out and quash the sheriff’s return, which motion was granted. The plaintiff reserved a “general exception,” and on the1 14th of January, 1916, entered this appeal—filing an appeal bond on February 5th. Although there was an agreement extending the time for filing a hill of exceptions, and it was extended by an order of January 24th, 1916, no bill of exceptions was filed. The appellee has made a motion to dismiss the appeal because it was not taken from a final judgment or determination such as is contemplated by section 2 of Art. 5 of the Code, and because, although testimony was taken, no hill of exceptions was filed.

When the sheriff’s return to a writ of attachment is quashed, after the return day, the plaintiff is out of Court —it is a final determination of the case—unless there can he a sufficient amended return or unless, of course, there is ⁸⁶ some other return in the .case not affected by the motion to quash. It is not suggested that the amended return does not correctly state the facts, or that there was any other return excepting the one amended. It is true that the record states that Mr. Steele “moves the Oourt to strike out and quash sheriff’s return of said writ of attachment (motion verbal), which motion was by the Oourt granted,” but it was on the same day the sheriff made the amended return and, although the motion speaks of the “Sheriff’s return,” it follows in the record and in the docket entries the amended return, and we understand it referred to the return as amended, as indeed the argument so showed. ‘ As we have seen, this was an attachment on a judgment, the office of which is like that of a fieri facias—although the procedure is different. If a fieri facias is quashed, so that property seized under it is released, there is an appeal.

Wilmer v. Harris, 5 H. & J. 1 ; Hollingsworth v. Floyd, 2 H. & G. 87. “The process of attachment on judgment, under the Act of 1715, Ohap. 40, sec. 7 (now a part of sec. 29 of Art. 9), is considered as an execution and governed by the same principles.” Baldwin v. Wright, 3 Gill, 241 ; Griffith v. Ins. Co., Garnishee, 7 Md. 102 . That is one reason why an appeal should lie when the return to an attachment on a judgment is quashed, if thereby the property attached is released. In regard to motions to quash returns of summons in one of the late cases, State v. Penn.

Steel Co., 123 Md. 212 , the distinction between those cases which are appealable and those which are not is pointed out by Judge Pattisoet. He said if the motion to quash prevailed under the facts of that case, no action would lie in this State and there was no one upon whom process could be served, and hence an appeal from an order quashing the return of the summons would lie. In referring to the cases relied on by the appellee to sustain its motion to dismiss the appeal, he showed that in Oland v. Agric. Ins.

Co., 69 Md. 248 , where the Court dismissed the appeal, it was said: “The case against the appellee is still pending in the Court below, and the process may be renewed ⁸⁷ and properly served in accordance with the provision of the statute to which we have referred.” In Bolgiano v. Gilbert Lock Co., 73 Md. 132 , the company was. summoned by service on G. M. Lance, its. secretary, and Lance was also summoned individually. The defendant filed a petition alleging that the company was a corporation not having an office in this State; and Lance was a resident of Hew Jersey; that Lance was in this State as a witness in a case on trial, and while he was in attendance as such witness and for no other purpose the summons was served upon him. The petition then prayed for an order quashing the writ and the return thereon. There was. a demurrer to the petition which the Court overruled, and from the order overruling the demurrer the appeal was. taken.

That seems, to have been treated as equivalent to an order quashing the return and this Court passed on the questions involved, and affirmed the order. In Mullen v. Sanborn and Mann, 79 Md. 364 , a motion to quash the writ of summons and the return of the sheriff thereon was made on the ground that the party summoned was. in this State for the purpose of attending the trial of a case as a witness, and the writ was quashed. The appeal was considered by this Court and the order reversed. It is true there was no motion to dismiss the appeal in either of those cases, but prominent attorneys represented the respective appellees, and the Court did not indicate any doubt about its right to entertain the appeals.

In Central of Ga. Ry. Co. v. Eich berg, 107 Md. 363 , the service was held sufficient and the company appealed, but it was said in the opinion: “It was agreed by counsel at the argument that no advantage should he taken of the fact that there has been no final disposition of the case by the Court below; the desire on both sides being to have the question of the sufficiency of the service determined by this Court on this appeal.” We did determine it without further reference to the right of appeal. In Long v. Hawken, 114 Md. 234, there was again a motion to quash the summons and the return on the ground that the defendant (the appellee) was a non-resident of the State and was ⁸⁸ in the State for the sole purpose of attending a tidal of a case as a party and testifying as a witness.

The motion was granted and the summons and return quashed, from which action the appeal was taken. There was a motion to dismiss the appeal. Judge Bbxsooe said in passing on it, on page 239: “As to the motion to dismiss thei appeal we need only say that the appeal is from the order and determination of the Court in granting the defendant’s motion to quash the summons and the return of the sheriff thereon, and in such cases the appeal brings up the record for review by this Court. Shaeffer v. Gilbert, 73 Md. 66 ; Coulbourn v. Fleming, 78 Md. 210 .

When the motion rests on questions of fact, the evidence ought to