Walters v. Munroe

Le Grand, C. J., delivered the opinion of this court. At the instance of the appellants, an attachment issued from the circuit court for Prince George’s county, to recover of the defendant the amount of a promissory note. On the 5th day of April 1858, the sheriff returned the writ of attachment, with a schedule of certain real estate which he had attached. On the return day of the writ, being the first day of the session of the circuit court, the defendant moved the court to dissolve the attachment, and permit him to appear without bond.

This motion was overruled by the court, and a judgment entered in the following words: “And thereupon it is considered by the court here, that the said plaintiffs have their judgment of condemnation against the lands and tenements of the said John H. Munroe, so as aforesaid attached, for as well the said debt, costs and charges aforesaid, as for all damages, costs and charges which shall or may accrue in the premises, by reason of the prosecution of the said writ of attachment, [if the said defendant shall not, within a year and a day, to be accounted from this day, come into court here, and by first filing a bond in the penalty required by and conditioned according to the Act of Assembly ⁵⁰⁵ in such case made and provided, appear in person or by attorney, and make it appear to the court here that the said plaintiffs have been or are paid the debt aforesaid, or shall otherwise, in court, discount or bar the said plaintiffs of the same, or any part thereof.”] The record then goes on to' declare, that “thereupon, on motion of the parties, by their attorneys aforesaid, and by order of court here thereon, this cause is continued until the first Monday in November next.” At the April term, 1859, the defendant prayed the court “to strike out the judgment nisi,” upon his filing bond, &c. This motion the court allowed, and hence this appeal. All that part of the judgment which we have included in brackets, commencing with the word -“if,” and terminating with the word “thereof,” it is contended on the part, of the appellants, is no part of the judgment, but misprision of the clerk, and ought, therefore, to be disregarded by this court. Upon the determination of the true character of this judgment must depend the decision of this appeal.

At the lime the judgment was entered, the plaintiffs were entitled to their judgment of condemnation, with the right, to1 execution on compliance with the Acts of Assembly. Under the Act of 1715, ch. 40, the defendant bad the right to come in at any time during the term (at which the attachment was returned,) and by giving bail and appearance under the capias, to dissolve the attachment, and to plead and defend the action; the attachment being merely ancillary to the suit, and intended to compel an appearance. But this right of tlie defendant to appear and dissolve Ike attachment, continued only during the term. The judgment nisi, entered on the call of the case, becomes absolute upon the failure of the defendant to appear aud defend during the term.

Mr. Evans, in his book of Practice, page 99, very properly says, in speaking of a judgment of condemnation in attachment on warrant, “but the judgment, like all other judgments intended to compel an appearance, may be stricken out during the term, hence the judgment, is very improperly called a condemnation nisi, but, in fact, it is an absolute judgment, ⁵⁰⁶ not given upon any condition whatever.” Although ther judgment nisi, in attachment on warrant, is like any oihetr judgment absolute, subject t.o be stricken out only during the term, yet, under the provisions of the Act of 1715, the plaintiff cannot have execution within a year and a day, without first giving a bond, conditioned to make restitution in case the defendant shall, within a year and a day, to be accounted from the attachment awarded, come in and show that the plaintiff’s claim has been paid, or barred in whole or in part. The Act of 1834 provides, that when the defendant is “a non-resident,” the attachment shall not be dissolved, unless he appears and gives