Baldwin ex rel. Owens v. Wright , 3 Gill 241 ( 1845 )

Archer, G, J.,

delivered the opinion of this court.

It appears in this case, No. 8, that Baldwin, at October term 1838, recovered a judgment against Wright and Dewit Kent, for the sum of $360, with interest and costs. That on 13th July 1841, the plaintiff issued a ca. sa., returnable to October term 1841, under which Wright was taken. That Wright, on the return of the writ, moved to quash the execution, on the ground that, subsequently, to the rendition of the judgment, he, Wright, had recovered a judgment, in the same court, against Baldwin, the plaintiff, to the execution, and had issued an attachment thereon, and laid the same in his own hands, prior to the issuing out of the ca. sa., at the suit of Baldwin against him. On this motion, the ca. sa. was quashed by the court. The proceedings upon the attachment, do not appear in this record, but by an agreement of the parties, the facts in records No. 9,11,12 and 14, are to be considered as parts of this record, so far as they are applicable.

There is, as we apprehend, no evidence of the service or any valid attachment in the case of Wright vs. Baldwin, for reasons which we shall advance in a subsequent case, If this be so, then the question would be, how far issuing of the attachment, by Baldwin, without any evidence of a levy of hie attachment in the hands of Wrighi, could operate to induce the court to quash the ca. sa.

An actual attachment laid on the credits of Baldwin in Wrighi''s hands, would, no doubt, be decisive upon this subject, and the pendency of such attachment, would furnish a good ground for quashing the ca. sa. The defendant may plead a pending attachment against the claim of a plaintiff, and upon the ground that such a plea would be available, as a defence, it ought to he received to quash tire ca. sa., the party issuing his ca. sa., has his remedy on the judgment only suspended by its being quashed, for if the attachment should be ultimately defeated, he has it in his power to renew the ca. sa.; but if the court refuse to quash the ca. sa., the defendant would be compelled to pay the money to the plaintiff, although he might be entitled to a condemnation of the credits in his hands. But, the fact that an attachment had been issued, to effect the credits of Baldwin, without any return of service, ought not to be attended with the same consequences. The court cannot know in whose hands the attachment will be laid, or whether, if it be levied, it will be levied so as to furnish Wrighi, against whom the ca. sa. issues, with any ground, whatever, for the interference of the court, in quashing the ca. sa. We, therefore, think the court were in error, in quashing the ca. sa,, and, therefore, reverse their judgment.

JUDGMENT REVERSED AND PROCEDENDO AWARDED.

The record in this case, No. 9, shows, that at April term 1840, Wright recovered a judgment against Baldioin for the sum of $505.92, interest and costs, and on the 23rd of November 1840, issued attachment thereon. By agreement of the parties, this attachment is to be considered as having been first returned, attached. But, at the succeeding term, the sheriff obtained leave to amend his return, and thereupon returned, that he had laid the wxit in the hands of Wright, himself, and summoned him as garnishee.

The defendant moved to quash the writ of attachment, and the return thereto, for reasons which it will not be necessary to state.

The court overruled the motion to quash, and from this judgment an appeal has been taken. The record shows no final judgment to have been pronounced by the court from such a judgment, which is only interlocutory, no appeal will lie.

APPEAL DISMISSED.

An attachment in No. 11, was issued on the 11th of June 1840, returnable to October term 1840. This attachment was not returned, and at the same term, an alias attachment issued, These proceedings were taken out by Wright, on a judgment obtained by him against Baldwin, and professed to be grounded on the 7th sec. of the act of 1715, ch. 40, which authorises an attachment, instead of any other execution, to issue on a judgment. This process, under this act, is considered by the terms of the act, as an execution, and in our judgment, should be governed by tile same principles. Assuming this principle to be true, the doctrines determined by this court, in Turner and Walker, 3 G. if J., 385, are decisive against the right to take out an alias attachment before the first is returned. The second writ is grounded.on the first, and the return thereof; and the first ought, therefore, to be returned before the second can legally issue. It cannot be assumed, from the neglect or failure of a sheriff, to return the first attachment, that there has been no service of it, and unless such fact was made to appear to the court, it would not be justified in issuing a second attachment. The first may have been served, and if, in such a case, a second attachment should be deemed lawful, there might be a double levy for the same debt, which would operate great oppression and injustice. From such a determination, no injury could result to a plaintiff. He possessed the power to rule the sheriff, to return the process, which might have been coerced by the court without delay, and if injury, in any manner, resulted from the conduct of the sheriff, the law furnished the plaintiff redress against him. This renders it unnecessary to examine the question, how far it was competent for the deputy sheriff, after the death of sheriff, to return the second attachment, or to amend the return after it was made, for if the alias attachment was illegal, because there was no return to the first, an enquiry into the legality of these proceedings would be unimportant.

In this view of the subject, the court should have decided in favor of the motion to quash the attachment, and ought not, therefore, to have entered a judgment of condemnation.

JUDGMENT REVERSED.

In No. 12, Thomas Baldwin recovered judgment against Robert Wright and Dewit Kent, at October term of Prince George's county court, 1838. On the 16th April 1840, Thomas Baldwin conveyed to the appellants, among other property, the judgment he had thus obtained. On the 17th of April 1840, Robert Wright issued his attachment on a judgment he had theretofore obtained against Thomas Baldwin. The court decided, that Wright acquired a lien on the judgment of Baldwin against Wright and Kent, in virtue of his judgment against Baldwin, and the attachment by him issued on his judgment against Baldwin.

The date of the transfer to the appellants is prior, in point of time, to the attachment of Wright, so that it is clear the attachment could not give a prior equity to Wright.

But it is contended, that Wright could have set off his judgment against the judgment obtained by Baldwin against Dewil Kent and Wright. Supposing this judgment could have been set off, still, as the assignment bears date on the 16th April 1840, and the attachment issued by Wright was not issued until the day after, (the 17th of April 1840,) there can exist no foundation whatever for the claim set up by Wright.

JUDGMENT REVERSED AND PROCEDENDO AWARDED.

The evidence adduced by the defendant in No. 1.4, justified the court in the judgment they gave. The evidence of Brooke proves, that Owens disclaimed the assignment, and although Baldwin proves, that the assignment was made to Owens, for a valuable consideration, if his testimony be admitted, that fact will not prevent the gratification of the defendant’s motion, for as Owens disclaimed the assignment, he acquired no right in it.

We think the court erred in rejecting the testimony of Baldwin. The general rule is, that a party to the record cannot be examined as a witness. But, in this motion, to strike out the use, we do not consider Baldwin, as in any manner, a party. The contest is solely between the defendant, and the cestui que use, and he is in no manner liable for the costs.

JUDGMENT AFFIRMED.