Loeber v. Schroeder

• Decision Date: 10 May 1893
• Docket Number: No. 1,280,1,280
• Citation: 37 L.Ed. 856,149 U.S. 580,13 S.Ct. 934
• Parties: LOEBER v. SCHROEDER et al
• Court: U.S. Supreme Court

149 U.S. 580

13 S.Ct. 934

37 L.Ed. 856

LOEBER

v SCHROEDER et al.

No. 1,280.

May 10, 1893.

L. P. Hennighausen and M. R. Walter, for the motion.

William Colton, opposed.

Mr. Justice JACKSON delivered the opinion of the court.

This writ of error to the court of appeals of the state of Maryland is brought to review and reverse a judgment of that court affirming an order of circuit court No. 2, of Baltimore city, overruling a motion of the plaintiff in error to quash a writ of fl. fa. issued against him in pursuance of a decree entered in the court of appeals in April, 1892. The defendant in error moves to dismiss the cause for want of jurisdiction. This motion is based on two grounds, viz.: First, that a writ of error will not lie to an order overruling a motion to quash an execution, because it is not a final judgment or decree, within the meaning of the federal statutes; secondly, that no federal question is involved in the case.

It appears from the record that the defendant in error J. Henry Schroeder, as administrator of Catherine Loeber, deceased, on July 12, 1890, filed his bill of complaint in circuit court No. 2, of Baltimore city, against the plaintiff in error, John Loeber, in which it was alleged that the plaintiff's intestate, in 1882, loaned to her husband the sum of $8,000, being a part of her separate estate, on condition that he should pay said sum of money, on her death, to her children, and that said John Loeber, who was the husband of the intestate, agreed to take said money, upon that condition, as a loan from his wife. The complaint further charged that the defendant, John Loeber, had never repaid said sum of money, and that he denied that the same was a part of the estate of his deceased wife, and prayed for an order of the court directing and requiring that he should bring said money into court, to be invested in the name of his deceased wife's children; that the same might be declared a lien upon property described in the bill, which had been improved with the fund borrowed; and for such further relief as the nature of complainant's case might require.

The defendant answered this bill, and donied that his wife had ever loaned him the amount stated in the bill, or any part thereof, and denied all indebtedness to the wife, or her estate. He further set up in his answer that the complainant had failed to make proper parties to his bill, and that no case was stated therein of which the court could take jurisdiction.

On the issues thus presented, proofs were taken, and upon hearing of the case, May 21, 1891, circuit court No. 2, of Baltimore city, being of the opinion that the complainant had no interest whatever in the matter controversy, dismissed the bill without prejudice to any proceedings that proper parties might be advised to take. From this decree the complainant prosecuted an appeal to the court of appeals of the state, which, on January 28, 1892, reversed the decree of the circuit court, and entered a decree in favor of the complainant, as administrator of Mrs. Loeber, for $8,000 and costs, which amount said court found, from the testimony, Loeber had received from his wife, and undertook to invest for her benefit in certain houses which belonged to him. 23 Atl. Rep. 579. The court of appeals, while holding that the undertaking to invest the money in certain specified property was a contract within the fourth section of the statute of frauds, and for that reason could not be specifically performed, nevertheless a court of equity ought to give relief by decree for the amount of money which he had received from his wife. A decree was accordingly entered against Loeber for the sum of $8,000. Subsequently, after entry of that decree, Loeber moved the court of appeals for a reargument of the case on the grounds that the bill alleged a loan from Mrs. Loeber to him upon the undertaking and promise to pay the same to her children, but alleged no other contract or undertaking on his part; that the complainant failed to prove the alleged contract, but did prove, in the opinion of the court, another contract, viz. that 'John Loeber undertook to invest his wife's money for her benefit in certain houses which belonged to him,' and as that contract could not be enforced the court thereupon decreed, because of the statute of frauds, a repayment of the money received by him; and it was claimed that this latter contract, on which this decree was based, was not alleged in the bill, and that the bill stated no case within the jurisdiction of the court below, or of the court of appeals.

This motion for reargument was overruled, the court of appeals holding that the case was within the jurisdiction of the court below, and that, whatever variance there may have been between the allegations of the bill and the proof in the case, the court of appeals was authorized, under the statutes and decisions of the state, which were specially cited and referred to, to enter a decree according to the testimony, without regard to the special averments of the bill. 24 Atl. Rep. 226. The court of appeals rested its action and decision mainly upon the fifth section of the act of 1832, forming the thirty-fourth section of article 5 of the Code, which provides that 'on an appeal from a court of equity no objection to the competency of a witness, or to the admissibility of evidence, or to the sufficiency of the bill or petition, or to any account stated or reported in said cause, shall be made in the court of appeals, unless it shall appear by the record that such objection was made by exceptions filed in the court from...