Baker v. Baker
| Decision Date | 24 June 1908 |
| Parties | BAKER et al. v. BAKER et al. |
| Court | Maryland Court of Appeals |
Appeal from Circuit Court, Frederick County, in Equity; John C Motten, Judge.
Suit by Alice M. Baker and others against Charles N. Baker and others for the partition and sale of real property. Pending the suit Charles N. Baker and other defendants petitioned for a receiver of the property involved, and, from the appointment of a receiver, plaintiff and defendants Isabell M. Baker and others appeal. Reversed, and petition dismissed without prejudice.
Eugene L. Rowe, for appellants.
Hammond Urner, for appellees.
A bill in equity was filed by Alice M. Baker, a daughter of Nicholas Baker, deceased, against J. Bernard Baker and other heirs of Nicholas, Isabell M. Baker, his widow, Charles W. Nussear executor of Mary C. Nussear, who held two mortgages against the property of the decedent, and some lien creditors of J Bernard Baker, for the sale of the real estate left by the decedent, on the ground that it was not susceptible of partition. The executor of Mary C. Nussear assigned the mortgages to Isabell M. Baker, the widow, after the bill was filed. An answer was filed by three of the heirs and a judgment creditor of J. Bernard Baker, admitting the allegations of the bill, excepting as to the dower of the widow, and alleging that she was only entitled to dower in the surplus over the mortgages. The executor of Mary C. Nussear filed a disclaimer, alleging that he had no interest in the mortgages, having assigned them to the widow. Afterwards Charles N. Baker, Mary A. Dukehart, and Jennie Adelsberger, three of the children of Nicholas and defendants in the equity case, filed a petition therein, alleging that the real estate of Nicholas descended to them, J. Bernard Baker, and Alice M. Baker as his heirs at law, subject to the dower of the widow and also subject, as to certain portions of the real estate, to the two mortgages, and making other allegations which will be hereinafter referred to. It asked for the appointment of receivers and for general relief. The court passed an order upon the petition appointing Eugene L. Rowe, who was the solicitor for the plaintiff in the bill, and Edward H. Rowe receivers, but the former declined to act. Afterwards Alice M., Isabell M., and J. Bernard Baker filed answers to the petition, as required by the statute, and entered an appeal from that order, but the answers cannot be considered by us.
The question for our determination is whether that order was properly passed. Section 192, art. 16, Code Pub. Gen. Laws 1904, provides that "the court may, at any stage of any cause or matter concerning property, real or personal, on application, or of its own motion, pass such order as to it may seem fit, with regard to the possession of the same, pendente lite, or the receipt of the income thereof, on such terms preliminary thereto [as to security, etc.] as to it may seem just, subject to the same right to move for its discharge, and the same right of appeal as is given in the preceding section." The section (191) referred to provides that "an appeal may be taken by any of such parties from the order granting such mandate or injunction, or the refusal to discharge or dissolve the same in such cases, and in such manner and on such terms as is now allowed in cases of injunction." Section 190 provides that the court can at any stage of a cause or matter, on the application of any party in interest by motion or petition, or of its own motion, order a mandate or injunction, as therein provided. Sections 190 to 194, inclusive, of the Code of 1904, were added to article 16, by Acts 1896, p. 754, c. 441, and have since then been in force, being numbered 177-181 in Code Pub. Gen. Laws 1888, art. 16. What is now section 192 has not hitherto been passed on by this court, but section 190 was referred to in County Com'rs v. School Com'rs, 77 Md. 283, 26 A. 115; Supreme Lodge v. Simering, 88 Md. 288, 40 A. 723, 41 L. R. A. 720, 71 Am. St. Rep. 409; Baltimore City v. Poole & Son Co., 97 Md. 68, 54 A. 681; Horner v. Nitsch, 103 Md. 508, 63 A. 1052. Although it must be admitted that a somewhat liberal construction was placed on section 190, as to the procedure under it, those cases do not throw any light on the question now before us. There can be no doubt that some of the objections made by the appellants to this petition cannot be sustained, and it is clear that the application for receivers was intended to be under section 192. The petition is filed in the original equity cause, and the proceedings therein are referred to. Inasmuch as the bill and exhibits show the title of the petitioners, it was unnecessary to be more explicit on that subject, as the court had the undoubted right to consider all the proceedings in that cause. It had jurisdiction over the subject-matter involved, and apparently over all the parties, although the record does not affirmatively show that all of them had been brought into court by subp na or orders of publication. Inasmuch, however, as the appellants brought the record to this court, and it does not show that the parties were not in court, we would, in a proceeding of this character, presume that, when the judge below acted, all necessary parties had been actually or constructively served with process. Nor can we have any doubt that Mrs. Isabell M. Baker was subject to the doctrine of lis pendens, as announced in Sanders v. McDonald, 63 Md. 503. The executor of Mary C. Nussear made affidavit to the disclaimer filed by him on June 28, 1907, while the affidavit as to taxes made by Mrs. Baker, as assignee of the second mortgage, was made June 29th (the assignment of the first mortgage not appearing in the record), and the assignment and the disclaimer were filed the same day. We would, therefore, for the purposes of this case, assume that the executor had been brought into court before he made the assignment in so far as necessary to make her subject to the lis pendens, as announced in Sanders v. McDonald, without deeming it necessary to consider whether she, having knowledge of the pendency of the cause and being a party in another capacity, as widow, would not be bound, regardless of that question.
But there are other questions involved, which present difficulties that seem to us not to have been met by the appellees. While it is true that the court is authorized by section 192, even of its own motion, to "pass such order as to it may seem fit, with regard to the possession of the same, pendente lite, or the receipt of the income thereof," and, although we deem the power given broad enough to authorize the appointment of a receiver in a proper case, the statute did not mean to abolish the rules on the subject of the appointment of a receiver, which this court had adopted and followed for so many years. It is only when there is enough shown in the proceedings to authorize such step that the court can of its own motion act, or when the proceedings and the application are sufficient for that purpose. The right of appeal is expressly given, and "the rule laid down in the cases cited, that the court will not appoint until the defendant is first heard, unless the necessity be of the most stringent character, is one which can only be enforced upon appeal from the order appointing the receiver." Voshell v. Hynson, 26 Md. 94. In the leading and well...
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