Brown v. Kemper

• Decision Date: 12 November 1867
• Citation: 27 Md. 666
• Parties: JASPER BROWN v. ANNA B. KEMPER, by her next friend, JOHN KOLBE.
• Court: Maryland Court of Appeals

27 Md. 666

JASPER BROWN v. ANNA B. KEMPER, by her next friend, JOHN KOLBE.

Court of Appeals of Maryland

November 12, 1867

APPEAL from the Circuit Court of Baltimore City.

This is an appeal from a decree of the Circuit Court of Baltimore City, perpetuating an injunction to restrain execution upon a judgment rendered in an action at law. The facts of the case will appear sufficiently stated in the opinion of the Court.

The cause was argued before BOWIE, C.J., BARTOL, WEISEL and CRAIN, J.

Thomas A. Hopkins and Patrick M'Laughlin, for the appellant, contended:

1. That the action at law against husband and wife for a tort, was properly instituted; and the declaration made a good legal cause against husband and wife. Estill and Wife vs Fort, 2 Dana, 238; Phillips vs Phillips, 7 B. Monroe, 268; Roadcap and Wife vs. Sipe, 6 Gratt., 213; Vine vs Saunders, 33 Eng. Com. Law R., 290.

2. A judgment by default is as binding as any other judgment. Green vs. Hamilton, 16 Md. Rep., 317.

3. Proof taken under an ex parte commission, in support of the allegations of the bill, should be such, as would be exacted of the complainant, if by the answer they were neither confessed nor denied. Oliver vs. Palmer and Hamilton, 11 Gill & John., 426.

4. Where two Courts have concurrent jurisdiction of the same cause, that Court which first acquires jurisdiction of the cause, shall retain it. Albert and Wife vs. Winn and Ross et al., 7 Gill, 446. And this is a matter, too, of which the Court will, of its own motion, take notice. Withers et al. vs. Denmead, 22 Md. Rep., 135.

5. By making the motion to strike out the judgment in a Court of law, the appellee waived her right to apply to a Court of Equity, at least until redress was refused her in a Court of law. Henderson & Ross vs. Gibson, Garn. of Johnson, 19 Md. Rep., 234.

6. If the complainant make a case by her evidence, by which she shows that she is not entitled to the relief prayed for, then this Court will reverse the decree. Oliver vs. Palmer & Hamilton, 11 Gill & John., 426.

7. The appellee could have taken an appeal from the judgment at law, but it may be said, that by the judgment by default, and the inquisition, she would be barred from excepting to the testimony for insufficiency, or other cause. This is true, but it results from her fault. If the declaration do not show a good cause of action, she can successfully appeal from it, and therefore she has not exhausted her remedy at law. If the declaration show a good cause of action, the testimony in this case is far short of making a good case for an injunction.

H. Clay Dallam, for the appellee.

In the absence of proof to the contrary, this Court will assume the verity of the statements made in an interlocutory decree under the Act of 1820, ch. 161, and that it was legitimately passed. Long vs. Long, 9 Md. Rep., 348; Calwell vs. Boyer, 8 G. & J., 148; Fitzhugh et al. vs. McPherson, Adm'r of Neth, 3 Gill, 408; Code Pub. Gen. Laws, Article 16, sections 100, 115, 117; Code Pub. Gen. Laws, Art. 5, sec. 26.

The judgment recovered in the Superior Court, so far as the appellee was concerned, was null and void; she never appeared by an attorney in that suit; and even if she had, it would not, in any way, have affected her rights. She was a feme covert and not sui juris, and not competent even to employ an attorney. Not only was the interposition of a Court of Equity properly invoked by her, but it was the forum which alone could grant the relief she desired. Whatever appertains to the separate property of a married woman, has always been a peculiar subject of the jurisdiction of Courts of Equity. Griffith vs. Clark, 18 Md. Rep., 463; Bridges & Woods vs. McKenna, 14 Md. Rep., 261; Wallingsford vs. Wallingsford, 6 H. & J., 485; Burton et al. vs. Marshall, 4 Gill, 487; Norris vs. Lantz & Hyde, 18 Md. Rep., 261.

The Code declares that the property of a feme covert "shall be protected from the debts of the husband, and not liable, in any way, for the payment thereof." A debt "is any claim for money." Code Pub. Genl. Laws, Art. 45, sec. 1.

And if "a married woman" having a separate estate, cannot affect that separate estate, unless the obligation sought to be enforced, presents upon its face some evidence of the intent to charge the estate, or there be evidence aliunde tending to prove such intent," (Koontz vs. Nabb, 16 Md., 549) it can hardly be contended that under the very vague and loose declaration which set forth the appellant's case in the Superior Court, such a result can be attained. In that declaration not only is not the interest of the wife stated distinctly and affirmatively, but it is not stated at all--the joinder of her was therefore improper, and she not being sui juris, and never having appeared to the suit, she can now impeach the judgment. And this Court has decided, that "where a suit is in the joint names of husband and wife, the interest of the wife must be stated distinctly and affirmatively in the declaration, otherwise the joinder is improper." Ridgeley vs. Crandall & Wife, 4 Md.Rep., 435; Stirling et al. vs. Garritee, 18 Md. Rep., 468; Griffith vs. Clarke, 18 Md. Rep., 464; Barr & Wife vs. White, 22 Md. Rep., 259; 1 Chitty's Pleading, 74, 75; Higdon vs. Thomas, 1 H. & G., 139.

A feme covert can only be sued for her own actual wrong or trespass, and cannot become a trespasser, merely by her previous or subsequent assent during coverture. 1 Chitty's Pleading, 82, (66.)

Where the wife commits theft or burglary or any civil offence, in the company of her husband, the law construes it to be done by his coercion, excuses her, and he alone is responsible. 1 Hale P. C., 45; 3 Thomas' Coke, 528, and notes; 4 Black. Com., 29; Hasbrouck vs. Weaver, 10 Johns., 247.

An action will not even lie against both for a tort, unless there is proof that the wife committed it, along with the husband. 2 Bright on Husband and Wife, sec. 8, p. 80; 2 Kent's Com., 150 (7 th Edition); Berry vs. Harper, 4 G. & J., 467; 1 Chitty's Plead., 85.

In some cases a tort by the husband and wife is considered, in law, as the act of the former; thus trover lies against the husband alone, on a conversion by both.

But, whether the judgment recovered in the Superior Court against the appellee and her husband, is or is not, as to her, a nullity; it is clear, that the separate estate of the married woman cannot be seized, on an execution, at law, to satisfy it. The property levied on was the separate property of the wife, conveyed to her directly, by deed from the grantor. Smith, Ex'r of Smith, vs. Morgan, 8 Gill, 133; Bridges & Woods vs. McKenna, 14 Md. Rep., 267, 268.

Even in a case where it is proven that, jointly with her husband, she was a wrong-doer, and judgment recovered against both, it is submitted that under the laws of Maryland, her separate estate, could not be subjected, by any proceeding at law, to satisfy the judgment, but could only be charged by a proceeding in equity.

WEISEL J., delivered the opinion of this Court.

This appeal is from an order perpetuating an injunction. After the injunction itself had been granted and the writ served, the complainant below proceeded, under an interlocutory order obtained by reason of the failure of the defendant (the appellant) to appear to the subp na, to take proof ex parte in support of her bill, and upon its return, to obtain the final order appealed from, perpetuating the injunction. We are therefore to examine this proof and the bill of complaint, to ascertain whether there was error or not in this final order. The proof simply verifies the facts alleged in the bill, that Anna Barbara Kemper, the complainant, (suing by a next friend) is the wife of Henry Kemper, to whom she was lawfully married in July, 1859; that she is the grantee in the deed exhibited with the bill, and is still the owner of the property thereby conveyed; that she is the identical person named in the suit at law of Jasper Brown against Henry Kemper and Mary Barbara Kemper, his wife, and that she was inaccurately summoned in said suit by said name of Mary Barbara Kemper; that she and her husband were still living and resided in Baltimore county. The exhibits with the commission were the deed of the city of Baltimore to Anna Barbara Kemper, dated 11th February, 1863, for certain real estate in Baltimore city in fee; and the record of a suit at law in the Superior Court of Baltimore City, in which Jasper Brown (the appellant) was plaintiff and Henry Kemper and Mary Barbara Kemper, his wife, were defendants, which resulted in a judgment upon an inquisition, on a judgment by default for want of plea; and a fieri facias was issued thereon and levied on the property conveyed by the said deed. A motion to strike out the judgment was entered after the issuing of the ...