Gelston v. Sigmund

• Decision Date: 28 June 1867
• Parties: HUGH GELSTON v. ALBERT SIGMUND.
• Court: Maryland Court of Appeals

27 Md. 345

HUGH GELSTON v. ALBERT SIGMUND.

Court of Appeals of Maryland

June 28, 1867

APPEAL from the Circuit Court of Baltimore City.

In this case a bill was filed by the appellee asking for the production of certain evidences of title, and for an injunction to restrain the appellant from further proceedings in a case in the Court of Common Pleas in Baltimore city wherein the appellant was plaintiff and the appellee defendant, and in which a judgment had been obtained by the former in proceedings instituted under the provisions of Article 53 of the Code of Public General Laws, to dispossess the latter of certain premises on Baltimore and Charles streets in the city of Baltimore. The Circuit Court, by order of the 19th of December, 1866, directed the injunction to issue as prayed, and from this order the appellant, having first filed his answer, took this appeal. The ground upon which the interposition of a Court of Equity, by injunction was sought, is sufficiently set forth in the opinion of the Court.

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

Thales A. Linthicum and Julian I. Alexander for the appellant argued:

That the bill in this case being one for discovery, and not for relief, the injunction erroneously issued, unless the complainant showed himself entitled to the discovery prayed. It is merely a " fishing bill. " The complainant does not allege or pretend any interest or title in the premises in himself, nor does he set forth with certainty and particularity the deeds or evidences of title required to be discovered, nor does he allege that the facts sought to be discovered are indispensable as proof to any case in which he is concerned, and his inability to prove the facts save by answer of the appellant; without which material averments the discovery will not be required. Oliver vs Palmer and Hamilton, 11 G. & J., 426; Story's Eq. Plead., 318, 319; Gelston vs. Hoyt, 1 John. Chan., 548. The right to a discovery extends only to facts material to the complainant's case, and not to the title of, or to the facts material to the defendant's case, and a demurrer to the bill for these reasons would be sustained. Story's Equity, sect. 1497. Where the application is made to the Court for a discovery and injunction, the Court, before requiring an answer or granting an injunction, is bound to examine the pleadings as they stand at the time of the application, and of its own motion inquire into the materiality or sufficiency of the averments to sustain the prayer of the bill, and if the averments of the bill are insufficient and demurrable, neither the discovery nor injunction should be granted. Demurrers not being favored in Maryland, and the defendant having the right to all the advantages of a demurrer by answer aptly drawn, to the same defence as by demurrer, (Alexander's Chancery, p. ,) the Court should see that the averments, if answered affirmatively, are sufficient to maintain the bill, before ordering its process or interfering by injunction.

The complainant's case as it was presented to the Court below by the averments contained in this present bill, and by the proceedings of the cause in the same Court, to which it refers, shows:

1st. That there was a judgment rendered by a justice of the peace against the complainant, (he having waived a trial,) by which it was determined that his interest in the premises in question, determined with the termination of one year from the 1st day of July, 1865, and this judgment was upon his appeal to the Court of Common Pleas affirmed, after verdict and judgment of restitution, &c., rendered against him.

2d. That the complainant filed his motion for a new trial in said Court, which motion is still pending.

3d. That the appellant (the defendant in that motion,) was anxious to have that motion argued and determined.

4th. That in order to prevent the hearing and determination of that motion, the complainant filed his original and amended bills in the Circuit Court of Baltimore city, and obtained therefrom an injunction restraining the appellant from arguing that motion, or attempting to have the same heard and determined.

5th. That Gelston, the appellant in this case, and Meyenberg, the defendants to said original and amended bills, filed their answers thereto, and a paper writing (a copy of which is filed in this cause) was produced by Gelston as part of his answer.

6th. That Gelston and Meyenberg then appealed to this Court from the orders granting said injunction, and filed the requisite appeal bond.

7th. That such appeal and bond dissolved the injunction granted.

8th. That the answers of the defendants as above, were full and complete answers to said original and amended bills, and the averments and charges therein stated, were positively and directly denied, and all the pretended equities of the complainant sworn away and denied.

9th. That the proceedings in said cause were all in the Circuit Court of Baltimore city.

Such being the state of the case at the time the injunction in this case was granted, it is respectfully submitted, that the Court below erred in granting the injunction, because it should have examined the whole case before granting it, and the proceedings upon the original and amended bills of complaint being in the same Court, to which answers had been filed, denying and flatly contradicting the averments and equities of the complainant--and the complainant having referred to said proceedings, the Court could not disregard the facts set forth in said answers. Bell vs. Purvis et al., 15 Md. Rep., 22. And to do so would simply be acting upon only a part of the case, in violation of law and of the plain rules of evidence. The application for this injunction is similar to an application by motion to reinstate an injunction dissolved on bill and answer; in such instances the case is heard as it stands at the time of the motion--the answer forming a part of the case to be determined. State vs. Northern Central Railway Co., 18 Md. Rep., 193.

And the proceedings in the above cause being in the same Court, (and now in this Court likewise on appeal,) and being referred to as a fact or for facts in a case, they are as much a part of that case as if actually transcribed therein. Co. Lit. 4 b.; Phelps vs. Stewart, 17 Md. Rep., 231. But if this Court shall determine that said proceedings are not part of the present appeal, then the Court below should have required the filing of said proceedings as part of this case before granting injunction, and it erred in granting the injunction without it. Where documentary evidence is referred to, it should be produced before injunction is granted. Haight & O'Connell vs. Burr, 19 Md. Rep., 130; Mahany et al. vs. Lazier et al., 16 Md. Rep., 73; Nusbaum & Bowes vs. Stein et al., 12 Md. Rep., 318; Eyler & Matthews vs. Crabbs, 2 Md. Rep., 137; Union Bank of Md. vs. Poultney & Ellicott, 8 G. & J., 324. A contrary rule will have the effect of allowing a party by his mere oath to prove the contents of a paper writing and violate the rule of evidence which requires the writing itself to be produced, and place the Court in the position of acting judicially upon a case or evidence not before it; a Court cannot construe a writing without having it before it, and equity requires full and candid disclosures. Canton Co. of Balto. vs. N. C. R. W. Co., 21 Md. Rep., 383; Keighler et al. vs. Savage Munufacturing Co., 12 Md. Rep., 383. The bill further shows, that the alleged equities were presented as a defence in the Court of Common Pleas as an appellate Court--a Court of competent jurisdiction--which heard and had actually determined the facts stated in the bill, according to the law and the equity, and the right of the matter. And it is submitted that the judgment of that Court is conclusive and final. Lyday vs. Douple et al., 17 Md. Rep., 188; Gott and Wilson vs. Carr, 6 G. & J., 312; Briesch vs. McCauley, 7 Gill, 189; Chappell et al. vs. Cox, 18 Md. Rep., 513. An estoppel bars and concludes parties and privies in pleading and evidence at law and in equity, from impeaching, controverting or denying the facts thereby determined.

And the Court below should not have assumed jurisdiction to review the decision of said Court, or have granted an injunction, as to do so was in effect to entertain an appeal from the verdict and judgment of that Court. Contee vs. Cook, 2 Harr. & Johns., 179; Richardson et al. vs. Mayor and City Council of Baltimore, 8 Gill, 433; Alexander and Wilson vs. Mayor and City Council of Baltimore, 5 Gill, 383; Fowler vs. Lee, 10 G. & J., 358; Gardner vs. Jenkins, 14 Md. Rep., 58; Boyd et al. vs. Ches. & Ohio Canal Co., 17 Md. Rep., 195; Withers et al. vs. Denmead, 22 Md. Rep., 135; Reeves vs. Cooper, 1 Beasley, 223.

The cases made by this bill, and the original and amended bills to which it refers, against Gelston and Meyenberg, are identically the same, and having knowedge of the filing of the original and amended bills and facts in said cause, the Court should have dismissed this last bill summarily, as the application was vexatious and oppressive, and a mockery of justice. Wood vs. Bruce, 9 G. & J., 215; Brown and Wallace vs. Wallace and Mitchell, 4 G. & J., 494; Hoffman's Practice, 89. The appeal from the orders granting the injunction on the...