Boyd v. Chesapeake & Ohio Canal Co.

Goudsborough, J., delivered the opinion of this court. The record in this case shows that the appellant obtained a judgment in the circuit court for Washington county, at November term 1855, against a certain William Brown, for $1435.51. He subsequently caused an attachment, instead of any other execution, to be issued on this judgment, under which certain proceedings were had, so that at the March term, 1858, of said court, a judgment of condemnation was entered by default against the appellee, as garnishee in the [210] attachment, for the whole amount of the judgment against Brown. • A writ of fieri facias was issued on this judgment of condemnation, and levied on sundry articles of personal property claimed by the appellee. At the instance and upon the bill of complaint of the appellee, the circuit court issued an injunction prohibiting and enjoining the appellant and sheriff from making sale of the property taken in execution, until the further order of the court. At November term 1S59, a motion was made by the respondent to dissolve the injunction. The court, upon the hearing, overruled the motion, and he appealed to this court. After a careful examination of this case, and of the proceedings which were had on the common law side of the circuit court, we think that its equity power by injunction was improperly exercised. The bill of complaint alleges that the appellee is “a corporation chartered by the laws of Maryland. ’ ’ It is thus brought within the operation of the 5th section of the Act of 1832, ch. 306, not only in reference to the mode of bringing the corporation into court as defendant, but, in our opinion, the word “process,” used in that section, is’sufficiently comprehensive to apply to the service of writs of attachment on a corporation as garnishee. By the return of the sheriff in this case, which, by the Act of 1854, ch. 75, is made “evidence of the same, as is now the case in the service of other writs,” two of the officers and directors of the company were served with notice of the attachment; and their official relation to the company is no where denied in the bill of complaint. In the case of the U. S. Insurance Co. vs. Shriver, et al., 3 Md. Ch. Dec., 381, the chancellor correctly lays down the doctrine, that “if notice is given to a director officially, for the purpose of being communicated to the board, although such notice should not be communicated, the institution is. bound by it.” But it is objected here that the sheriff’s return was wholly defective, and not binding on the appellee. This would certainly be true if confined to his first return. But his applica [211] tion to the court to amend it, being made within the term, as appears by the record, it was clearly within the power of the court to allow the amendment, and the amended return made by the sheriff, gratifies the requirements of the law. The appellee complains that the rule of court as to filing interrogatories, and the service of them, Was wholly disregarded. We deem it a sufficient answer to this allegation, to say that the plaintiff who files his interrogatories may waive them, and the rule of court is not enforced until the appearance of the garnishee and the plaintiff becomes informed of the defence relied upon. Another objection relied upon is, that the judgment of condemnation upon which the execution issued, was by default, and that the Act of 1834., ch. 305, sec. 4, provides for a writ of inquiry before any judgment by default can be entered against a corporation. How far this Act refers to judgments of condemnation, or whether it relates only to suits instituted on original causes of action, where the amount actually due is unascertained, it is not material for us to decide. If there Was irregularity in the entering of the judgment of condemnation, such irregularity will not justify the interference of a court of equity by injunction. We are fully sustained in this view by the decision of the Court of Appeals in the case of Fowler vs. Lee, 10 G. & J., 358. The appellee seeks to sustain its right to relief in equity by alleging that the property levied on is covered by sundry mortgages, executed by it to the State of Maryland, to secure the payment of a large indebtedness from it to the State. While we refrain from interfering with or deciding the right of the State to the property involved in this controversy, we do decide that a mortgagor cannot shelter itself or shield its property under the protection of a mortgagee. The relation existing between the appellee and the State is not that of trustee and cestui que trust. Whatever protection the State may be entitled to claim as mortgagee, must be asserted by itself, and cannot be considered in this case, instituted by the appellee alone. There is no precedent or authority for allowing the appellee (which holds merely as mortgagor) to [212] -interpose any claim for relief on behalf of the State, as mortgagee. (Decided June 20th, 1861.) Order reversed, and bill dismissed with costs.