Dorsey v. Hagerstown Bank

• Decision Date: 29 October 1861
• Citation: 17 Md. 408
• Parties: JOHN C. DORSEY, and others, v. THE HAGERSTOWN BANK, and B. A. GARLINGER.
• Court: Maryland Court of Appeals

17 Md. 408

JOHN C. DORSEY, and others, v. THE HAGERSTOWN BANK, and B. A. GARLINGER.

Court of Appeals of Maryland.

October 29, 1861

The Acts of 1852, ch. 133, and 1853, ch. 344, relating to the effect of answers in equity, as evidence, do not apply to the hearing of a case on motion to dissolve an injunction, and where the answers swear away the equities of the bill, the injunction, on such hearing, must be dissolved.

Where a cause is not set down for final hearing, but simply on the motion to dissolve the injunction, it is irregular on such hearing to dismiss the bill; it should be retained, and the complainants allowed to proceed with the cause to final hearing.

APPEAL from the Equity Side of the Circuit Court for Washington county.

The bill in this case was filed on the 26th of August 1858, by the appellants against the appellees, for an injunction to restrain execution of a judgment recovered by the bank against the complainants; the other defendant was the sheriff executing the process.

The bill charges that the bank recovered a judgment, in November 1846, against the complainants, for $2750, and that the same was revived by scire facias in March 1857. It then charges that Dorsey, the principal judgment debtor, had, from 1849 to 1856, made certain specified payments on this judgment to the bank, or its attorney, and that the bank has issued execution thereon, with directions to the sheriff to allow only a part of such credits. The injunction was granted upon the filing of the bill.

The answer of the bank, under oath, denies the existence and applicability of the credits claimed by the bill to this judgment, and explains fully all the matters connected therewith. The answers of both defendants also take defence to the bill on the ground that all the credits claimed by it were before the judgment of fiat on the scire facias, and the complainants do not impeach the said fiat by facts, or on any grounds which they could not have availed themselves of at law, nor were they prevented from so doing by fraud or accident, or by the act of the opposite party, unmixed with any negligence or fault on their own part.

On filing the answers, the defendants entered a motion to dissolve, and an order of court was passed setting this motion down for hearing on the 11th of December 1858, and leave granted to both sides to take proof to be used upon this hearing. No proof, however, was taken. Certain proceedings were then had at the instance of the complainants, to make the executors of one of the complainants who had died since the filing of the bill parties. On the 30th of December 1859 the complainants filed an exception to the answer of the bank, upon the ground that it was not signed by a solicitor or attorney of the court, and, on leave, the answer was amended in this particular. On filing the amended answer, the motion to dissolve was again made, and on the 8th of February 1860, the court passed an order " that this cause be set down for hearing on the 1st Monday of March next," and on the 31st of March 1860, the court (PERRY J.) passed an order or decree dissolving the injunction, dismissing the bill, and awarding costs to the defendants. This decree states: " The above cause standing ready for hearing, and being submitted, and the bill, answers and proceedings having been carefully read and considered, it is thereupon," & c. From this decree or order the complainants appealed.

The cause was argued before LE GRAND, C. J., BARTOL and GOLDSBOROUGH, J.

R. H. Alvey, for the appellants:

1st. The decree was erroneous, because on mere motion to dissolve the injunction, the whole cause has been disposed of, as on final hearing. The bill has been dismissed, and costs awarded, terminating the case prematurely, and denying to the complainants the benefit of further proceeding and final hearing. The cause standing for hearing on motion to dissolve only, and being submitted, which means simply that the parties leave it to the chancellor to determine, without argument, (4 H. & McH., 174,) the propriety of dissolving the injunction, was the only question within the province or power of the court. It is the right of the complainant, in every injunction cause, to have the proceeding brought to final hearing, as distinguished from hearing on motion to dissolve. If the injunction be dissolved on motion, the complainant may, if he thinks proper, proceed to establish by proof the allegations of his bill, and if he succeeds, either the injunction is renewed or other relief is granted by the final decree, as is proper for the circumstances of the case. 1 Bland, 200, 201, Paul vs. Nixon.

2nd. But in any aspect of the case as presented, the decree being final, was improper. To have justified such a decree, the cause should have been set down for final hearing--a proceeding that never occurred, and which none but the complainants, in the then predicament of the case, could take. 7 G. & J., 275, Somerville vs Marbury. Upon filing the answers, the motion to dissolve, the obtention of a commission, or rule further proceedings, were the only proceedings the defendants could take. Or, at any rate, if they undertook to set the case down for final...