Dawson v. Contee

Bowie, C. J., delivered the opinion of this Court, having first stated the case as above: The preliminary question to be considered is, whether the refusal of a judgment of condemnation, is such an order as may be appealed from. Although it is not strictly speaking a final judgment, yet if the motion was improperly refused, it prejudices the plaintiff as effectually as a judgment of non pros. The motion is not one of those addressed to the discretion of the Court, but an application for a legal remedy, prescribed by Act of Assembly to be granted “ex débito” and not “e gratia,” or refused according to the true con [29] struction of the Act. This motion is not to be classed with motions for a new trial, or otlier motions merely discretionary, but rather with such as motions to change the venue, the decisions on which this Court has repeatedly held to be subjects of appeal. Vide 12 G. &. J., 257. 2 Md. Rep., 275. 5 Md. Rep., 375. Griffin vs. Leslie, 19 Md. Rep., 15. The third section of the Act of 1715, ch. 40, entitled An Act directing the manner of suing out such attachments, etc., after prescribing the preliminaries, provides: “at which day of return of said attachment, if the said defendant shall not then appear, nor the garnishee, in whose hands the aforesaid goods and chattels and credits of the defendant were attached, to show cause to the contrary, the respective Courts shall and may condemn the said goods, &c., so as aforesaid attached, and award execution thereof to be had and made, * * * as in other judgments, he the said plaintiff, so prosecuting as aforesaid, giving good and sufficient security before the justices of the respective Courts, etc., to make restitution of the goods, etc., so condemned, or the value thereof, if the defendant so as aforesaid prosecuted, shall within a year and a day, to be accounted from the said attachment awarded, come in and make it appear that the plaintiff hath been satisfied, etc.” This section is susceptible of the interpretation adopted by the Judge below, in conformity with the practice of that Judicial Circuit, requiring the bond prior to the judgment of condemnation, if entered before a year and a day after the issuing of the attachment. But the law has received a judicial construction to the contrary in the case of Harvey & Walters vs. Munroe, 17 Md. Rep., 505, in which this Court held that “at the time the judgment was entered (being the appearance term or return day) the plaintiffs were entitled to their judgment of condemnation, with the right of execution on compliance with the Acts of Assembly.” [30] Decided July 1st 1864. * * * * * ‘ ‘Although the judgment nisi, in attachment on warrant is like any- other judgment, absolute, subject to be stricken out only during the term, yet under the provisions of the Act of 1LL5, the plaintiffs cannot have execution within a year and a day without first giving bond, conditioned to make restitution in case the defendant shall within a year and a day, to be accounted from tbe attachment awarded, come in and show that the plaintiffs’ claim has been paid.” This decision, as this Court is advised, is founded on the practice in most of the .Judicial Circuits of the State, and must be considered •conclusive. We think, therefore, there was error in the ruling of the Court below, refusing the judgment of condemnation upon motion of the appellants, the plaintiffs below, and the judgment of the Court below on the motion will be reversed and procedendo awarded. Judgment reversed, and procedendo awarded.