Spear v. Griffin , 23 Md. 418 ( 1865 )

Weisel, J.,

delivered the opinion of this Court:

The writ of attachment in this case, was issued from the Superior Court of Baltimore city, on the 8th day of July 1859, accompanied at the same time with a writ of summons against the defendant, the appellee. A short note was filed with the clerk, setting forth the cause of action, a copy of which was made and sent with the writ, and set up at the court house door, and the writ itself returned non esl. The attachment was laid in the hands of Robert B. Griffin, as garnishee, who appeared by attorney at the term to which it was returnable, and being placed under rule plea, at the following term, in September 1859, pleaded for the defendant in the attachment, that he never was indebted as alleged, and for himself, that there were not in his hands any goods, chattels or credits of the defendant. Issue was taken on the first plea, and the general replication filed to the second; and the cause stood in this position until May term 1860, when the defendant in the attachment, Eliphalet H. Merrill, applied by attorney to be admitted to appear to the original action, by his giving bond to dissolve the attachment. This was granted him, the bond was filed, and the attachment dissolved. Thereupon the defendant prayed the Court that the plaintiffs might declare against him, and the Court so ruled. After two continuances, the cause still standing under the rule nar. thus laid, the plaintiffs moved the Court to order the clerk to strike out the entry of rule nar. which he had made on the docket in this case, and to pass an order to set aside tbe effect of said, entry, or of tbe laying of any rule requiring tbe plaintiffs to file any other, further or additional declaration in this cause than tbe short note or declaration which they filed at the institution of this suit, a cojjy of which had been stuck up at the court house door, according to the course of the attachment law, in such case made and provided. This motion the Court overruled; and thereupon the plaintiffs filed a new declaration in the suit, to which the defendant was laid under rule to plead. Pleas were accordingly filed to it, one of which was the plea of limitations. Issues were joined on all except the plea of limitations, and that, the plaintiffs moved to have struck out, on the ground that it was not filed within the time required by the 6th and the 8th rules of the Court; the short note to be regarded as the declaration in the case, which was filed on the issuing of the writ, and the time limited by the rules for pleading to the same having passed, the garnishee having appeared on the 11th day of July 1859, and pleaded for the defendant on the 13th day of September 1859, that he was not indebted as alleged, &c. But this motion to strike out the plea of limitations was overruled by the Court; and the plaintiffs thereupon filed three replications to said plea, on which issues were joined. The parties proceeded to trial, and the verdict and judgment being for the defendant, the plaintiffs appealed.

Three bills of exception were taken by the plaintiffs at the trial. The first was to the order overruling the motion to strike out the entry of rule nar., requiring the plaintiffs to file a new declaration against the 'defendant after he dissolved the attachment and ajopeared to the summons case. And whether the Court below erred in this, is the first subject of inquiry.

By the attachment laws of Maryland, (lílfi, ch. 40, sec, 1, and 1T95, ch. 56, sec. 3,) a declaration or short note, expressing the plaintiffs’ cause of action, is required to be filed with the capias ad respondendum, against the defend¡ant, a copy of wliicli is to be sent with the writ, to bo set up at the Court House door by the sheriff. This short note when used, instead of the declaration, has been regarded in practice as a declaration. In all cases where the garnishee has appeared to plead, cither for himself or the defendant, it has been decided that no new declaration as to him is necessary. Judge Anciimi, in Thrasher vs. Everhart, 3 G. J., 242, declares, that in our practice, it is substituted in this kind of proceeding for the declaration. And so it was expressly decided in Smith vs. Gilmor, 4 H. & J., 186, and recognized in Barr, Garn., vs. Perry, 3 Gill, 322. See, also, Boarman vs. Israel, &c., 1 Gill, 379. And in reference to the garnishee, it must be remembered, that he appears and pleads to the writ, in the attachment, not to the capias case; and if no new declaration as to him is necessary, but the short note in the capias case can be looked to and used, so as to enable him to plead in behalf of the defendant, to the cause of action, such plea or pleas as the defendant might or could do if taken by the sheriff, it would seem a fortiori, that it is sufficient, if it substantially sets forth the cause of action against the defendant himself, when he appears to the capias case, and to that and that only, can he appear to plead. Lamden vs. Bowie, 2 Md. Rep., 339. It would scarcely be contended, that if a full declaration, instead of a short note, had accompanied the writ, that a new declaration would be required when the defendant appeared to the suit against him. So if the short note be an alternative or substitute for the declaration, it performs all the offices of a full declaration, and no necessity for a new one, as to the defendant, arises. The Supreme Court of the United States, in Goldsborough vs. Orr, 8 Wheat., 226, so held in a case in which the defendant himself, appeared, after dissolving the attachment, (as in the present case,) and pleaded to the short note, and that high tribunal expressly pronounced such to be the practice in Maryland, as solemnly sanctioned by the decision in Smith vs. Gilmor, already cited. The case in Wheaton, arose upon tbe Maryland Act of 1195, tben in force in tbe District of Columbia.

We think this ought to be regarded as a distinct adjudication of this question, and that the statement of Mr. Hinkley, in his Treatise on Maryland Attachment Law, p. 19, to the contrary, is unsupported by any known authority in our practice. We are therefore of the opinion, that the Court below, erred in requiring the plaintiffs to file a new nar. after the defendant dissolved the attachment, and appeared to the summons case, and in overruling the motion of the plaintiffs to strike out the rule for that purpose.

The plaintiffs’ second exception was to the refusal of the Court below, to strike out the plea of limitations, which was filed to the new declaration. This resolves itself into an inquiry, whether this plea to the short note, was put in in time under the rules of Court; the short note having been thus determined to be the declaration against the defendant in the case.

The 6th rule of the Superior Court of Baltimore city, is: “ If a declaration shall have been filed, and a copy thereof served on the defendant with the writ, the clerk shall, immediately after appearance, enter a rule requiring the defendant to plead to said declaration in fifteen days thereafter, and no further notice of said rule will be required. If a copy of the declaration shall not have been served on the defendant with the writ, then, after filing the declaration and the appearance of the defendant, the plaintiffs may enter a rule requiring the defendant to plead in fifteen days after service of notice thereof.” And by the 8th rule, the plea of-limitations must be formally drawn up, and must be pleaded by the regular rule day, unless the time for pleading shall have been previously extended by the Court.

A copy of the short note was sent with the summons, and set up at the Court House door, and so returned by the sheriff. The design of this is to give notice to the defendant of the cause of action, and of the proceeding against him, that he might be brought in and appear to the action. Stone vs. Magruder & Brooke, 10 G. & J., 386. This notice, then, we regard as equivalent to a service of the copy of a short note or declaration upon him, and the requirement of the 6th rule in this particular, may be considered as gratified, but both branches of the rule require, that after his appearance, a rule to plead must be entered by the clerk, in one case, in fifteen days after appearance, without further notice, and in the other, in fifteen days after service of notice of the rule.

The defendant appeared to the summons case on the 19th day of May 1860, and did not file his plea of limitations until the 2nd day of February 1861, but in the meantime, no rule to plead was laid upon him. The plea of limitations is not a plea to the merits, and cannot be received after the rule day, and a general continuance of a cause does not enlarge the time to file it. Nelson vs. Bond, 1 Gill, 218. But to apply these well settled principles to it, a day to plead must be assigned under the rules of the Court, and it nowhere appears in the record, that this was done in this case, as to the defendant in the attachment. It does appear, however, that the garnishee appeared to the attachment on the 11th day of July 1859, the day of the sheriff’s return, and was placed under rule to plead to the short note, which he complied with by pleading, both for himself and the defendant, to the merits, to which pleas the plaintiffs took issue; and this state of facts and pleadings is relied upon by the plaintiffs as a compliance, according to the due course of the attachment law of this State, with the spirit and meaning of the said rules of Court, and sufficient to preclude the plea of limitations by the defendant himself, to the short note in this case. In this view wo do not concur, but are of opinion, that, upon his appearance, he had a right to plead for himself, and was not affected by the plea put in by the garnishee, (Wilson vs. Starr, 1 H. & J., 491;) and that he should have been subjected, after appearance, to the usual or proper rule to plead, in order to the application of the strict rule which governs the admissibility of tbe plea of limitations; such, rule not having' been laid upon the- defendant in the attachment, the plea of limitations was put in in time, and the Court below committed no error in overruling the motion to strike it out.

(Decided July 12th, 1865.)

We concur with the Court below in its rejection of the plaintiffs’ prayers, other than the first, and in the instruction given by the Court to the jury. That instruction correctly embodied the law applicable to the facts proved and admitted on the trial, on the issues growing out of the plea of limitations. This constituted the plaintiffs’ third bill of exceptions.

We affirm the Court below on the 2nd and 3rd exceptions, and dissent from it on the first, but as no benefit accrues to the plaintiffs in this case by this dissent, the cause will not be remanded, but the judgment will be affirmed.

Judgment affirmed.