Wilson v. Ridgely , 46 Md. 235 ( 1877 )

Grason, J.,

delivered the opinion of the Court.

The judgment on which the attachment’ in this case was issued, was recovered at November term, 1866, against Charles Ridgely, Jr., and George W. Wilson and Fielder Suit, two of his sureties, on a tax-collector’s bond ; Zadok Sasscer, the other security thereon, having died before the institution of the suit. It appears that the judgment was satisfied by the payment of the whole amount due thereon by George W. Wilson and the administrators of Zadok Sasscer, and thereupon the State’s attorney for Prince George’s County, upon the order of the Comptroller of the treasury, entered said judgment to the use of George W. Wilson for $1042.06, and to the use of the administrators of Zadok Sasscer for the same amount, being the other half thereof. On the 14th June, 1875, after the assignment of the judgment to them, the appellants, Wilson, and the administrators of Zadok Sasscer, issued an attachment on the judgment, which was laid in the hands of William A. Jarboe, upon certain funds alleged to be held by him as county treasurer, the same being the surplus proceeds of the sale of land, assessed to Charles Ridgely, Jr., for taxes due and unpaid. Upon the return of the attachment, pleas were filed by the claimants of said funds, who are not before us on this appeal; and afterwards a motion to quash the attachment was filed, the motion was sustained, the attachment was quashed, and this appeal was taken.

It was contended by the counsel of the appellees, that .the attachment was properly quashed, because the record does not disclose whether the judgment against the principal and sureties in the collector’s bond, was ever properly entered, and because no breaches in the condition of the bond were ever assigned. Upon the return of the summons in that case, the defendants appeared by attorney and no pleas were filed, and it must be presumed that the judgment was entered by the consent of their attorney.

In suits upon collector’s bonds, no assignment of the breaches of the bond is necessary, as Article 81, section 82, of the Code provides that, in reply to a plea of performance, the State may reply that the obligor or obligors hath or have not performed the condition of his or their bond, and give the special matter in evidence, and that it shall not be necessary to set out the breaches. The judgment was entered for the penalty of the bond, “tobe released on payment of the amount of the Comptroller’s certificate, and subject to sucb insolvencies and removals as may be certified to tbe Treasurer by tbe County Commissioners.” On the 12th August, 1869, the certificate of the Comptroller was filed in the case, showing the amount due the State to be $2783.68, with interest from June 21st, 1864, and the judgment was extended for this sum. Afterwards the judgment was credited, upon the Comptroller’s certificate, with insolvencies amounting to the sum of $649.89, and afterwards, on the same authority, with the further sum of $49.62, interest upon the judgment which was “ remitted or authorized to be done by law.” The credits reduced the judgment to the sum of $2084.12. These credits were for the benefit of the defendants; were authorized to be entered by the terms of the original judgment, and must be presumed to have been entered by their consent and authority, and cannot now be urged against the validity of the judgment. '

At common law, a surety in a bond, upon which judgment had been recovered, had no right, upon paying the amount of the judgment, to have it assigned to him, so as to enable him to have execution against his principal or co-sureties.

To give him a more speedy and efficient remedy than the common law provided, the Act of 1763, chap. 23, sec. 8, was passed, which authorized an assignment of a judgment by the creditor to a surety in the bond, and an execution thereon in the name of the surety who had paid and satisfied the judgment. But it was held, under the provisions of this Act, that when the State had recovered a judgment upon bond with surety there could be no assignment to the surety satisfying the judgment, for the reason that there was no person authorized by law to make the assignment. So the law remained until the Act of 1864, chap. 243, amended Article 9 of the Code, by providing an additional section to come in after section seven, and which enacted, that “in any case where judgment shall he recovered by the State against any principal debtor and a surety or sureties, and said judgment shall be satisfied by said surety or sureties, the same shall be entered by the attorney representing the State to the use of the surety or sureties satisfying the same, on the said attorney filing in the case a certificate of the Comptroller stating that said judgment has been satisfied, and said surety or sureties shall then be entitled to execution in his or their own name or names, and subject to the same provisions provided in the last two preceding sections.” The two preceding sections are sections six and seven, the former of which provides that when a judgment shall be recovered against a principal and surety, and the judgment shall be satisfied by the surety, he shall have an assignment of the same and an execution in his own name against his principal; and the latter provides that where there is a judgment against several sureties, and one of them shall satisfy the whole, he shall have an assignment and execution against his co-sureties for a proportionable part of the debt paid by the assignee. It will be perceived that under none of these sections is a surety entitled to an assignment and execution, unless there has been & judgment recovered against him. Zadok Sasscer not only had no judgment recovered against him, but he died before the suit was begun. His administrators are therefore clearly not entitled to an assignment of the judgment recovered against Ridgely, Wilson and Suit, and to execution thereon, notwithstanding they may have satisfied the said judgment. To entitle a surety to an assignment and execution against his co-sureties under section 7, it is incumbent upon him not only to satisfy the judgment, but to pay the whole amount of it, as has been decided by this Court at 'its present term, in the case of McKnew, and others vs. Duvall, 45 Md., 501. If George W. Wilson has satisfied the judgment in this case, that is, paid the balance due upon it, he is entitled to an execution against his principal, but not against bis cosureties, for it appears that he did not pay the whole debt due on the judgment. He cannot however, join with the administrators of his co-surety, even if they were also entitled to an assignment and execution, for the assignment is not to them jointly, but one-half of the judgment amounting to $1042.06, was assigned to each of them. The joinder is therefore fatal to the attachment in this case.

It was also objected, that an attachment will not be maintained which has been levied upon funds which a person has in his hands as a public officer, and it is claimed that the attachment in this case was properly quashed for this reason. This principle was held by this Court in the case of the Mayor and City Council of Baltimore, Garnishee of Brashears vs. Root, 8 Md., 100 and 101. In that case Root caused an attachment to be laid upon funds in the hands of the City Register, which he held as salary of Brashears, a policeman, and while the question in that case was, whether the salary of a municipal officer was liable to attachment, it clearly appears from the opinion of the Court, that no attachment laid in the hands of a public or municipal officer would be maintained, for it quotes with apparent approval from the opinion delivered by Mr. Justice Sargent, in the case of Balkly vs. Eckert, et al., 3 Barr’s Reps., 368, in which he says, that “ great public inconvenience would arise if money could be thus arrested in the hands of officers, and they be made liable to all the delay, embarrassment and trouble that would ensue from being estopped in the routine of their business, compelled to appear in Court, employ counsel and answer interrogatories, as well as take care that the proceedings are regularly carried on. If a precedent of this kind were set, there seems no reason why the State or county treasurer or other fiscal officers of the Commonwealth, or of municipal bodies, may not be subjected to the levying of attachments, which has never been attempted nor supposed to come within the attachment law.” Though the provisions of the attachment laws of this State are very broad, we cannot believe that they were ever intended to authorize attachments to be laid upon funds in the hands of State or municipal officers as such, and thereby impose upon them and the public service such annoyances, inconveniences and interruptions as are described by Mr. Justice Sargent. But there is nothing to show in this case that the funds attached in his hands were held by him as county treasurer. If such be the fact, and the money in his hands is a surplus of the sale for taxes of the land assessed to Ridgely for nonpayment of taxes, it is clear the attachment cannot be maintained if that fact be proved.

(Decided 2nd March, 1877.)

It follows from what we have said that the attachment was properly quashed, and the judgment appealed from will be affirmed.

Judgment affirmed.