
    J. REGESTER & SONS vs. THE WOODWARD IRON CO.
    Appeal from an order of the Circuit Court for Baltimore County.
    
      Reversed.
    
    The appellants sued out a foreign attachment against the appellee,.and the writ was levied upon certain pig iron belonging to the appellee and alleged to' be stored on the premises of the appellants. After the sheriff had made return of the writ and no appearance had been entered for the defendant, a judgment of condemnation nisi was rendered, and this, upon the expiration of the term, became final. Thereafter a writ of ji.fa. was issued and the iron was sold thereunder and was purchased by the appellants, who were the judgment creditors. After these proceedings had been had, and after the lapse of the term at which the judgment of condemnation became final, the defendant in the attachment case — the appellee here — filed a motion to strike out the judgment of condemnation, and alleged that there had been fraud and surprise in its obtention. With and in support of this motion there was filed an ex parte affidavit made by the agent of the defendant. On the hearing of the motion no testimony or evidence was taken by either side. The Circuit Court for Baltimore County, with no other evidence before it than the ex parte affidavit alluded to, struck out the judgment previously entered, and from that order this appeal was taken.. Held, 1st. That the final judgment of condemnation should not have been struck out after the lapse of the term upon a mere ex parte affidavit alleging fraud. 2nd. That where the person in possession of the property taken by attachment is not summoned or returned as garnishee, his failure to give the defendant notice of the attachment does not render the proceedings void.
    N N Field, for the appellants. Wm. Pinkney Whyte for the appellee.
    No. 9,
    October term, 1895.
   Recorded in Liber J. S. F. No. 2, etc., folio 773, of “ Opinions Unreported.”  