Hardesty v. Campbell , 1868 Md. LEXIS 104 ( 1868 )

Stewart, J.,

delivered the opinion of the court.

The Code of Pub. Gen. Laws, Art. 10, sec. 30, authorizes any plaintiff having a judgment in any court of law in this State, to issue an attachment instead of any other execution against the lands, tenements, goods, chattels and credits of the defendant, in the plaintiff’s own hands or in the hands of any other person. Sec. 31, provides that if neither the defendant nor garnishee, in whose hands such property or credits were attached, appear at the return of the attachment, and show sufficient cause to the contrary, the court shall condemn the said property and credits, so attached and award execution thereof. By the Act of 1861-2, ch. 262, it is further provided, that executions by way of attachment may issue at any time within twelve years from the date of the judgment, the said attachment to be subject to the same defenses as in case of scire facias, if more than three years have elapsed from the date or expiration ,of the stay thereon. In this case, the garnishee appeared and filed a motion to quash the attachment for reasons assigned. He was not only required to appear, but to show sufficient cause to sustain his motion. No proof was offered to support several of the grounds relied upon. In Lambden v. Bowie, 2 Md. 340, which was a case of attachment on warrant, (and we are not aware of any reason to distinguish the practice in this regard, from such case as this,) it was ruled, that “ when a motion of this sort is made, and the circumstances relied upon to sustain it are not admitted to be true by the opposite party, reasonable opportunity should be given to produce testimony on the subject. The manner of taking the proof may be regulated by consent of parties, or directed by the court, in accord*ance with the rules of practice, in summary proceedings of this and of like character.” In Gover v. Barnes, 15 Md. 576, the same practice is affirmed, “ that the court had authority to entertain the motion to quash, to hear the evidence in relation thereto, and decide the motion.”

We do not understand the offer of the plaintiff’s counsel, to prove certain alleged facts at the trial of the case, as admitting the truth of the allegations relied upon by the garnishee as grounds for quashing the attachment. There was no proof or pleadings to conclude the parties. Under the state of the case, upon the motion made by the garnishee, it was incumbent on him to sustain his motion by competent proof. The Act of 1861-2, ch. 262, above cited, is an answer to the fifth reason assigned in support of the motion. No proof having been offered in support of the second, third and fourth reasons, our attention must be confined to the first, which rests upon a matter appearing on the face of the record. The mere fact of the Sheriff’s return, that he had laid the attachment in the hands of the garnishee, as administrator, was not per se sufficient cause for quashing the writ. The provisions of the Code relating to attachments are very comprehensive in their scope, and it has been decided by this court that an attachment may be laid upon funds in the hands of a trustee; that is, that the process is not vicious because so laid before final account or distribution. In McPherson v. Snowden, 19 Md. 233, this court, in reviewing the previous decisions upon the subject, held, “ that they were not to be understood as deciding that an attachment cannot be issued and laid in the hands of a trustee before a final account, and that it would not be effective upon a sum ascertained by such an account to be the distributive share of the debtor in the attachment, but that the process, before the account is stated, cannot affect the fund or the trustee, or compel any modification of the final account for the benefit of the attaching creditor.” In Groome v. Lewis, 23 Md. 152, our predecessors have said, “ it cannot be doubted that an *attachment laid in the hands of a trustee before a final account, would be good if, at any time before trial or judgment, the share of the fund in hand belonging to the debtor is ascertained by a final account.” This does not affect the action of the court, having the authority to distribute the fund. Unlike the ordinary process for the recovery of debts, the right of a plaintiff in an attachment to a judgment of condemnation,- does not depend upon the fact whether there were funds or credits in the hands of the garnishee at the time of issuing or service of the writ, hpt .whether such funds or credits may have since come to his hands, or may be in his hands at the time of trial or judgment.

In view of these decisions, we cannot hold that the mere fact that the garnishee is an administrator, is a sufficient reason for quashing the attachment. Other questions have been argued in this case which were not before us for adjudication, upon which we express no opinion, but confine our decision to the precise point presented by the record, to wit: that the mere fact that an attachment has been laid in the hands of an administrator is no ground for quashing the writ.

Judgment reversed and procedendo awarded.