Belt v. Blackburn

• Decision Date: 13 February 1868
• Citation: 28 Md. 227
• Parties: EDWARD W. BELT, Administrator of GEORGE T. CRAUFURD, and others, v. RICHARD S. BLACKBURN, Administrator of DAVID CRAUFURD, and others.
• Court: Maryland Court of Appeals

28 Md. 227

EDWARD W. BELT, Administrator of GEORGE T. CRAUFURD, and others, v. RICHARD S. BLACKBURN, Administrator of DAVID CRAUFURD, and others.

Court of Appeals of Maryland

February 13, 1868

APPEAL from the Circuit Court for Prince George's County, in Equity.

This case was before this Court on a former occasion, ( vide 22 Md. Rep., 447,) on an appeal from an order, dated the 21st of April, 1863, granting an injunction to prevent Richard S. Blackburn, the administrator of Dr. David Craufurd, and one of the present appellees, from making distribution of the estate of his intestate. This Court, under the circumstances of the case as then presented affirmed the order granting the injunction, and remanded the cause for further proceedings. The case was re-instated, and further proceedings were accordingly had, a large mass of testimony was taken on both sides, and numerous exceptions thereto were filed by the respective parties. After the time for hearing the cause had been thrice enlarged, upon application of the complainants, they moved that the answer of the defendants be taken from the files of the Court. After argument, and a careful examination of the questions presented, the Court (A. B. HAGNER, Special Judge) overruled the motion. Subsequently the complainants filed exceptions to the answer. The cause was afterward heard upon its merits and the Court, on the 9th of January, 1866, passed an order overruling the exceptions of the complainants to the answer as also their exceptions to the testimony, save the sixth exception, which was sustained, and dissolving the injunction. From this order the present appeal was taken.

The cause was argued before BARTOL, C.J., GRASON, MILLER, ALVEY and ROBINSON, J.

Edward W. Belt and Thomas G. Pratt, for the appellants.

The first point arising on the present hearing, is the propriety of the Court's action in overruling the preliminary suggestion in writing, submitted by the complainants below, to the effect, that the paper filed as the general answer of the defendants be taken from the file because the said answer was not sufficiently sworn to; and because, if sworn to at all, it was only sworn to by Sarah Forrest, one of the defendants, and was therefore only her answer.

We say the Court erred, and for these reasons:

1. That these objections were properly in order when taken. Gibson vs. Tilton, 1 Bland, 352.

2. That the affiant does not profess, in the affidavit, to swear to her answer at all, but to the bill; and she could not have been prosecuted for perjury. Alex'r Ch. Pr., 61-290; Coale vs. Chase, 1 Bland, 137; Gibson vs. Tilton, 1 Bland, 352.

3. That the answer, if it be the answer of any one, is that of Sarah Forrest only; and the bill was therefore unanswered as to the other parties; and the motion to dissolve could not therefore be properly heard. Binney's case, 2 Bland, 109; Jones vs. Magill, 1 Bland, 177; Salmon vs. Clagett, 3 Bland, 125; Nesbitt vs. Dallam, 7 G. & J., 494; Richter and Wheat vs. Pue and Wife, 9 G. & J., 475; Warfield vs. Banks, 11 G. & J., 98; Bouldin, et al. vs. Mayor & C. C. of Baltimore, 15 Md. Rep., 18.

4. That the proceedings show that Sarah Forrest was not a party in interest, and the answer, if good as against the other objections, was no sufficient answer here. Code of Pub. Gen'l Laws, Art. 16, sec. 103, and Art. 47, sec. 27.

We now proceed, leaving the preliminary points that were ruled against us, to the consideration of the general subjects disclosed by the record, and contend that the answer was defective and insufficient, and ought not to have been ruled sufficient.

1st. Because there are parts of it which are not responsive, and could not therefore be considered on the motion to dissolve, &c. Gibson, et al. vs. McCormick, 10 G. & J., 65; Fitzhugh, et al. vs. McPherson, Adm'r of Neth, 3 Gill, 408; Hardy and Talburtt vs. Summers and Wife, 10 G. & J., 316; Drury vs. Roberts, 2 Md. Ch. Dec. 157.

2d. Because there are parts of the answer that set up new matter, or assert rights affirmatively or in avoidance, and which should not have been considered on said motion, &c.

3d. Because there are certain allegations in the answer only sworn to as the ""information and belief" of the affiant, and therefore inadmissible. Kent vs. Richards, 3 Md. Ch. Dec., 392; Alex. Ch. Pr., 86.

4th. Because the answer does not swear away all the equities of the bill, and is therefore insufficient on this motion. Kent vs. Richards, 3 Md. Ch. Dec., 392; Alexander's Ch. Pr., 116; Doub vs. Barnes, 1 Md. Ch. Dec., 127; Coale vs. Chase, 1 Bland, 136; Hardy and Talburtt vs. Summers and Wife, 10 G. & J., 316; Hutchins vs. Hope, 12 G. & J. 244; Doub vs. Barnes, et al., 4 Gill, 1; Warren vs. Twilley, 10 Md. Rep., 39; Bouldin, et al. vs. Mayor & C. C. of Baltimore, 15 Md. Rep., 18; Gelston vs. Rullman, 15 Md. Rep., 262.

5th. The allegation of estoppel, in the answer, was sufficient to vitiate it on the ground of its being irresponsive and in avoidance, and new matter. The alleged estoppel is introduced as a plea, and therefore could not be used in support of the motion to dissolve. 10 G. & J., 65; 3 Bl., 125; 2 Md. Ch., 157; 6 G. & J., 250; 3 G. & J., 491; 2 Bl., 254; 3 Gill, 408; 7 H. & J., 160; Alex. Ch. Pr., 85, 86.

6th. If the answer be defective on any ground, evidence cannot be admitted to supply the defect on this motion. Bouldin, et al. vs. Mayor & City Council of Baltimore, 15 Md. Rep., 18.

In the next place we contend, that the Court erred in disallowing our exceptions to certain portions of the evidence. These exceptions were properly in order when presented. 2 Bl., 37; 2 H. & J., 192; 2 H. & J., 443.

The depositions of C. C. Magruder and Thomas F. Bowie, before the commissioner, on 20th October, 1864, were improperly admitted. It is apparent from the commissioner's return that each of these witnesses, upon appearing, proceeded to state certain facts and identify certain papers, before (as far as appears) any interrogatories were put to them at all, in any form. And that the remainder (or second part) of the evidence of each was given in response to interrogatories, that as far as appears, were put orally. Touching the first part of their depositions, we say the return is wholly irregular and inadmissible, because if as to that part, they were examined to written interrogatories, then the interrogatories are not filed and returned; and if they were examined orally, then the examination was illegal. Alex. Ch. Pr., 70, 71.

If examined without any interrogatories, it was clearly illegal.

Touching the other portions of the evidence of said witnesses, the interrogatories that were afterwards put to them, were so far as appears, put orally, and the answers were therefore inadmissible. 9 G. & J., 121.

It does not appear that they were properly sworn. The evidence of Wm. B. Hill ought also to have been excluded, it having been excepted to on the same grounds relied on as to that of Magruder and Bowie. Even if the interrogatories to the aforesaid three witnesses were lawfully put, on the grounds above excepted to, then they were generally void as leading interrogatories, and our exceptions ought to have been sustained on that ground.

Our exception to Jarboe's evidence before Hodgkin, a justice of the peace, taken on the 20th November, 1865, ought to have been ruled good, because there was not due and proper notice to the complainants; and the defendants' interrogatories to that witness, were leading interrogatories and inadmissible. If our exceptions to the evidence of Bowie and Magruder, be held good on any ground, the Court will perceive that there is not in the case any evidence of the record and verdict from Charles county at all, it being identified only by them.

In the next place we contend that the injunction ought to have been continued, and the motion to dissolve overruled, upon three grounds, clearly growing out of the former decision by this Court, which clearly settles, that while the Orphans' Court of Prince George's county had a proper authority to pass the order of the 10th March, 1863, yet it could not be held valid if there were fraud, collusion or impropriety in its passage as alleged in the bill. Or if the complainants below did not have due notice. Or if the suits alleged by the bill to be pending in the Circuit Court of said county, were in fact pending at the time the order passed.

Since that decision, more than two years have elapsed, three other Judges have sat in the cause, and a large amount of evidence has been taken. Upon the evidence, we contend that it does disclose a sufficient "impropriety" in the passage of the order of the 10th March, 1863, to invalidate it, and to justify the maintenance of this injunction. The record discloses that an order was passed by the said Orphans' Court, on the 20th January, 1863, by which the remainder of the personal estate of David Craufurd, undistributed, was directed "to be brought into the Court, as soon as and when collected, to be invested under the further order of the Court." But that on the said 10th of March of the same year, without the intervention of any circumstance new to the case or to its status, the same Court on the petition of the defendants below passed the order of that date, directing an absolute distribution of said fund (consisting of over $50,000,) among Blackburn and his co-claimants, to the express exclusion of the complainants below, by name.

The complainants below, then applied for and obtained the injunction, on the grounds named in the bill; the chief of which was that the original order of 20th January, 1863, had been passed by agreement. A large mass of testimony, conflicting in some respects, was taken in regard to these transactions.

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