First National Bank v. Jaggers

31 Md. 38, 1869 Md. LEXIS 76

• Court: Court of Appeals of Maryland
• Decided: June 16, 1869
• Status: Published

Opinion

Milleb, J.,

delivered the opinion of the Court.

The appellee obtained a judgment against William B. Lounsbury, on the 12th of March, 1867, for $1,620.80, and issued an attachment by way of execution therein, which was laid in the hands of the First National Bank of Baltimore, as garnishee, on the 27th of April of the same year. The controversy as shown by the record, is solely between the attaching creditor and the garnishee. The case was tried in August, 1868, and we shall consider the questions presented by the exceptions, without reference to the order in which they arose at the trial, and without noticing in detail all the prayers offered by the appellant.

The true name of the defendant in the judgment, the party intended to be sued and upon whom the writ was served, was Wales B., and not William B. Lounsbury, and one point strenuously insisted upon in argument is, that the judgment being against William, the attachment could not bind the assets or credits of Wales. To the garnishee’s plea of nulla bona of the said W. B. Lounsbury, the plaintiff replied that William B. Lounsbury, the defendant in the judgment, is otherwise known as Wales B. Lounsbury, and that the said Wales B. Lounsbury, W. B. Lounsbury, and William B. Lounsbury are one and the same person, and the same who was summoned in the original case and against whom the judgment was rendered, &c. It was proved that the writ was served upon Wales, but he did not appear, and judgment by default was obtained, and subsequently duly extended by the Court. In his application, under the name of Wales, for the benefit of the Bankrupt Law of the United States, on the 27th of February, 1868, he returned, in his lists of debts, the plaintiff as his creditor on this judgment. There is no doubt, that where a party is sued by a wrong name, and he appears to the suit and does not plead the misnomer in abatement, and judgment is rendered against him in the erroneous name, execution may be issued upon it in that name, and levied upon the property and effects of the real defendant; but there is some conflict in the decisions, whether the same result will follow if he does not appear, and the judgment is obtained by default. The weight of authority, however, is that this makes no difference, and if the writ is served on the party intended to be sued, and he fails to appear and plead in abatement, and suffers judgment to be obtained by default, he is concluded, and in all future litigation may be connected with the suit or judgment by proper averments. Crawford vs. Satchwell, 2 Strange, 1218; Smith vs. Patten, 6 Taunt., 115; Oakley vs. Giles, 3 East, 168 ; Smith vs. Bowker, 1 Mass., 76; Waterbury vs. Mather, 16 Wend., 613; Lafayette Ins. Co. vs. French, 18 How., 409. The case of Cole vs. Hindson, 6 Term Rep., 234, was a distringas to compel an appearance, and falls within the distinction taken by Lord Tenterden, in Reeves vs. Slater, 7 Barn. & Cress., 486, between m.esne and final process. We cannot, therefore, sustain this position of the appellant. In this connection is to be noticed also, the objection that there is no proof that Wales and William are the same person. This is based on the assumption that the Court had, on motion, ruled out all the testimony on this subject. But the fair and just construe-, tion of the motion to exclude the evidence is, that it was confined to that of the two witnesses, Webb and Carey, which was taken, subject to exception. The testimony of the Deputy Sheriff that he served the writ upon Wales, and the admission of the latter in the proceedings in bankruptcy that this very judgment against William was a judgment against himself, and so treated and considered by him, were offered and went to the jury without objection, were unaffected by the motion, and were amply sufficient to warrant the jury in finding the identity of person.

The appellant’s fifth prayer asserts that as Lounsbury applied for the benefit of the Bankrupt Law on the 27th of February, 1868, the plaintiff' could not recover for any funds which came to the hands of the garnishee within four months next preceding that date. This prayer is founded on that clause in the 14th section of the Bankrupt Act, which vests all the property of the applicant in the assignee, “ although the same is then attached on mesne process as the property of the debtor,” and declares the assignment “ shall dissolve any such attachment made within four months next preceding the commencement of” the proceedings in bankruptcy. W ithout attempting to define the meaning of the terms, “ attachment made,” as here used, we are clearly of opinion this clause refers to writs of attachment when used as mesne, and not as final process. By our law (Code, Art. 10, sec. 80) the plaintiff in a judgment may, “ instead of any other execution,” issue an attachment thereon against the lands, tenements, goods, chattels, and credits of the defendant. The writ, when so issued, is placed on the same footing, performs the same office, and is governed by the same rules as a fi. fa. Griffith vs. Ætna Fire Ins. Co., Garn. of Upton, 7 Md., 102; Boyd vs. Talbott, Garn. of Hook, Ibid., 404. This is final, and not mesne process. It is true it originates a new suit between the plaintiff and the garnishee, which may result in a judgment and execution against the latter, but this makes it none the less final process as against the defendant in the original judgment, and such process does not fall within the operation of this clause of the Bankrupt Act.

It appears from the evidence in the record, that Lounsbury was the agent of the AEtna Life Insurance Company, of Hartford, Connecticut, and made deposits in the First National Bank to the credit of that company. The bank account was kept in the name of the company, and Lounsbury drew checks thereon from time to time under a power of attorney for that purpose from the company. The plaintiff, supposing or insisting that part of the money so deposited really belonged to Lounsbury, caused this attachment to be laid in the hands of the bank. "When served upon the cashier, in April, 1867,he examined the books of the bank, and finding no account in the name of Lounsbury, and considering it could not affect the account of the insurance company, directed the counsel of the bank to return no funds of Lounsbury in the hands of the bank, and continued the company’s account without reference to the attachment. In December following, the bank’s counsel, who had been informed by the counsel for the plaintiff that the attachment was intended to reach and cover all moneys and credits of Lounsbury in the bank, either in his own name or as agent, trustee, or in the name of the AEtna Life Insurance Company, instructed the cashier to retain funds of the account of this company to cover the attachment, and the cashier immediately notified the company and Lounsbury of the condition of affairs. The latter then drew and remitted to the company a chock for $12,728.40, the whole amount in bank to the company’s credit. This check, when preseated, the cashier refused to pay, and insisted on retaining $2,000 to meet the exigencies of this attachment. Afterwards another check was drawn for $10,728.40, which the bank paid on the 5th of February, leaving a balance of $2,000, which, as the cashier testified, is still retained to meet this attachment. No deposit was after-wards made by Lounsbury, but on the 27th of February, the day of his application for the benefit of the Bankrupt Act, he remitted $2,000 to the company, which appears as a credit to him as of the 28 th of February in his account with the company on their books, and in his testimony in chief, when examined as a witness for the garnishee, he says this $2,000,’which was the last item in the company’s account with him, was for the $2,000 the balance of the check for $12,728.40, which the bank would not pay, and appears as a credit to him in the company’s account, because they held his cheek for more than the amount paid by the bank. It is true he afterwards attempted to contradict and explain this statement,and says this $2,000 which he remitted to the company was for other moneys he actually owed them, and was entirely independent of the $2,000 retained by the bank, which was still the money of the company, and he had no interest in it whatever. His testimony, however, on this point is very confused and unsatisfactory, and we are of opinion his previous admission in connection with the accounts, books and other proof in the case, afforded a sufficient basis of testimony on the subject to justify the court in submitting to the jury the finding of the facts stated in the plaintiff’s second prayer. The law of this prayer is clearly correct, for, on the facts there stated, the $2,000 remaining in bank became the money of Lounsbury and was a credit or debt due by the bank to him, and therefore subject to this attachment, it having so come to the hands of the bank, or thus made such credit or debt before trial.

Under, our attachment system it is the* settled law of this State, that an attachmant affects all property and credits of the debtor in the hands of the garnishee, or which may come to his hands at any time after laying the attachment and before trial, but in the present instance the plaintiff clearly could not, under the attachment against Lounsbury, recover for any funds to the credit of this company which the bank had paid over to them after attachment laid but before notice that such funds were designed to be affected by the writ. The plaintiff’s first prayer announces the former, and the defendant’s fourth prayer the latter of the above propositions, and it is said these two instructions, both of which were granted, were contradictory and calculated to mislead the jury. If they had been told the one instruction was a modification of the other, no objection could have been taken; and such we think was in this case the substantial effect of granting both. It is to bo presumed the jury was possessed of ordinary intelligence, and they must therefore have regarded the instruction granted at the instance of the garnishee as a modification of the general language of the plaintiff’s first prayer.

Prom what has been said it follows there was no error in the first exception in admitting in evidence the bank account, accompanied as it was with the tender of further proof that a portion of the moneys to the credit of the company in that account belonged in fact to Lounsbury. Nor can we perceive that any possible injury was-done the bank by the Court’s ruling in the second exception in allowing the cashier to state as part of his narrative and explanatory of his action in the matter, that when the attachment was served on him he considered it to be against W. B. Lounsbury, and to bind anything which he might have in bank, and that he knew by no other name than ~W. B. Lounsbury the person who made-the deposits and drew the checks in the account of the .¿Etna Life Insurance Company with the bank, especially when this testimony was expressly excluded by the Court as evidence of the identity of William B. with Wales B. Lounsbury. And lastly, by no possible rule of construction can any part of these funds thus in bank which may have been proved to belong to Lounsbury, be regarded as wages or hire of an employee in the hands of his employer so as to be exempt from attachment under sec. 36, Art. 10 of the Code.

(Decided 16th June, 1869.)

These views dispose of all the points or questions which, upon the broadest construction of the prayers and exceptions, can be said to appear by this record to have been tried and decided by the Court below, and we are forbidden by law to decide any others. Act of 1862, ch. 154.' We therefore forbear the expression of any opinion upon several questions of interest and importance argued at bar. Binding no error in the rulings excepted to we must affirm the judgment.

Judgment affirmed.