Graff v. Merchants & Miners Transportation Co.

CociíBAJN, J., delivered the opinion of this court. This appeal was taken from an order setting aside a fieri facias, and strikiug out a judgment obtained by the appellants in a case of attachment against L. Bernard. From an inspection of the docket entries contained in the record, it appears that the case against the appellee, as garnishee, was docketed, and judgment of condemnation nisi entered on the 14th of September 1857, the return day of the writ; that the fieri facias was issued on the judgment so entered, on the 12th of January 1859; that the petition of the appellee [370] to strike out the judgment, was filed on the 4th, and the order of the court, striking out, passed on the 9th of March 1859. The appellee filed its petition for striking out the judgment, because of certain irregularities in the mode of obtaining it. Before the argument, a motion was filed by the appellee to dismiss the appeal, on the ground, that the judgment was not so far final upon the claim in controversy, as to authorize an appeal from the order to strike it out. A determination of the character of the judgment, as to its regularity and conclusiveness, will therefore dispose of the questions presented by the record, and involved in the motion to dismiss. In considering the motion to dismiss,- we cannot look beyond the judgment itself. If it be found to ascertain and fix upon the appellee an adjudicated.liability, and to conclude it of all right of defence, it would be unreasonable not to hold it so far final and conclusive on the claim, or right,-in-controversy, as to authorize an appeal on the part of one who loses the benefit of such a judgment, by an order striking it out. Upon an inspection of the judgment as presented in the record, we do not think it open to question in this respect. It ascertains the amount of goods, chattels and credits, in the hands of the appellee,-as garnishee, and'condemns the same towards satisfying the appellant’s claim, in the usual form of an absolute judgment in such cases. It covers the whole of the appellant’s claim, and until stricken out, was binding and conclusive upon the appellee. This fact is conceded by the appellee by filing its petition-to strike out-the judgment, in order that itunight be enabled to appear and plead its proper defences, and try the case in due course of law. The lapse of the term at which the judgment was entered, concluded the right of the appellee to appear and plead, and the effort made by petition to strike out the judgment for irregularity, justifies the conclusion that it was otherwise final. The rule deduced from an examination of the cases involving this question, recognized'in the case of Green vs. Hamilton, 16 Md. Rep., 327, we think clearly establishes the right of appeal claimed in this [371] case. Upon a motion to dismiss the appeal, taken in that case from an order similar to the one under consideration, it was held, that the limitation against appeals, except in cases where the decisions of the courts below are so far final as to settle and conclude the rights involved in them, must be understood as applicable to cases where the judgment appealed from is entered while the cause is in fieri, and not as embracing those where a plaintiff has obtained a final judgment and the term has passed. In the case of Walters & Harvey vs. Munroe, 17 Md. Rep., 505, this court said, that a judgment of condemnation nisi, entered on the call of the case, becomes absolute by the failure of the defendant to appear and defend during the term. That the judgment in this case was final, we think cannot be disputed. The appellee, by the petition to strike it out, took the most convenient, if not the only mode by which to bar its effect as such. Had the court refused to strike out the judgment, the appellee would have had the right to an appeal, and there seems to be no substantial reason why the appellants should not have the same right upon the order passed. In our opinion the appellants are entitled to a review of the action of the court below, and we therefore overrule the motion to dismiss. The evidence contained in the record, upon which the question as to the regularity of the judgment must be determined, although not entirely harmonious, we think was sufficient to justify the order to strike it out. In our opinion it establishes the fact, that the writ of attachment was not returned by the sheriff until the 10th of November 1857, nearly two months after the return day, when the case against the appellee appears by the docket entries to have been docketed, and the judgment of condemnation entered. Whether these entries were made before or after the return of the writ, is immaterial. If they were made after the return, they constituted, to the extent of the judgment, a false record, and if before, the appellee was not then so in court as to authorize the docketing of the case, or entry of the judgment. In either aspect, whether [372] considered as involving the verity of the record, or the rights of the appellee, the entry of the judgment was entirely unauthorized and irregular. The question, whether the failure to ascertain the amount of the appellee’s liability by an inquisition in a subsequent stage of the case, was an irregularity for which the judgment should have been stricken out, cannot affect the disposition of this appeal, and we therefore express no opinion upon it. (Decided June 6th, 1862.) Under the circumstances, the order-fo strike out the judgment must be affirmed and the case remanded, so that it may be brought up by regular continuances, and prosecuted according to the usual course. Judgment affirmed, and procedendo awarded.