Haight v. Burr

• Decision Date: 03 December 1862
• Citation: Haight v. Burr, 19 Md. 130 (Md. 1862)
• Parties: HARVEY K. HAIGHT and HENRY O'CONNELL, v. HENRY BURR.
• Court: Maryland Court of Appeals

19 Md. 130

HARVEY K. HAIGHT and HENRY O'CONNELL, v. HENRY BURR.

Court of Appeals of Maryland.

December 3, 1862

The provisions of Art. 5, sec. 21, of the Code, in reference to appeals from orders granting injunctions and appointing receivers, being identical with those of the Act of 1835, ch 380, must be construed in the same way.

Under the Act of 1835, ch. 380, it has been uniformly decided, that although the necessity of filing an answer is imposed on the defendant as one of the conditions on which his right to appeal depends; yet the Court of Appeals, in its decision, is confined to the case made by the bill, and does not consider the answer.

One of the rules by which Courts of Equity in this State are governed in the appointment of receivers, is: " That fraud, or imminent danger, if the intermediate possession should not be taken by the Court, must be clearly proved, and that unless the necessity be of the most stringent character the Court will not appoint until the defendant is first heard in response to the application."

A bill in equity, asking for an injunction and the appointment of a receiver, filed by A, one of three partners doing business in this State, against B & C, the other members of the firm--A & B residing and also doing business under another firm, in Bridgeport, Conn. and C residing and managing the business in Baltimore, Md.--alleged in substance: That the partnership formed in 1854, and continued to 1857, under articles of agreement, was further continued by agreement signed by B & C, and by the tacit consent of A, to terminate in July 1861; that there were annual settlements of the business, by the last of which, in July 1861, it appeared that the profits for the year preceding amounted to several thousand dollars; that since that time C had largely over-drawn his interest in the concern, and B largely diminished his, while A had received nothing; that C had since controlled the business as if it was exclusively his, denying to A any settlement or satisfaction, or even access to the books of the firm; that C had failed to pay the debts of the firm, and was fraudulently appropriating the partnership funds, and diminishing the assets, and threatening " to sell out the whole concen," disregarding, and to the exclusion of, all rights of A; and that C was " of no pecuniary responsibility."HELD: That the case, as made out by the bill, satisfies the requirements of the rule above stated.

The failure of the complainant to exhibit the articles of co-partnership, had it appeared from the bill that they were in his possession, might have been urged, with much force, as a ground for refusing to grant an injunction or appoint a receiver before answer.

APPEAL from the Circuit Court for Baltimore city.

This is an appeal from an order of the Circuit Court for Baltimore city, appointing a receiver and granting an injunction.The bill was filed on the 15th of February 1862, and the order passed the same day, without notice to the defendants.The answers of the defendants, under oath, were filed on the 17th of the same month.The material averments of the bill are concisely stated in the opinion of this Court.

The cause was argued before BOWIE, C. J., and BARTOL, GOLDSBOROUGH and COCHRAN, J.

Richard J. Gittings and Arthur W. Machen, for the appellants:

We submit that the bill, on its face, did not present a case for the appointment of a receiver.It is well established, as a general rule, that a receiver ought never to be appointed without notice to the opposite party; that such notice was not given, is cause, prima facie, for the reversal of the order.Nusbaum vs. Stein,12 Md. Rep., 322.Blondheim vs. Moore,11 Md. Rep., 365.And it is incumbent on the party applying for the order, to show an " " imperious necessity," to justify a departure from the rule.Triebert vs. Burgess,11 Md. Rep., 461.But the special circumstances here, so far from justifying an ex-parte proceeding, very clearly indicated that it was not a case for the exercise of the exceptional power of appointing a receiver, without hearing the opposite party on the application.By his own showing, the complainant had been resting without complaint for a long time; no recent act of injury was alleged, and no facts of any kind were stated, from which it could be reasonably inferred that irreparable injury must be the consequence of any delay.(Seecases above cited.)Indeed, the whole cause of complaint resolves itself into vague allegations of his belief that some fraud was intended against him, without a single fraudulent act on which to ground his suspicion.Hubbard vs. Hubbard,14 Md. Rep., 356.It was the case of one partner setting himself against two; one of whom, Haight, stood confessedly clear of any imputation of fraud, and had at least equal claims with the complainant.

The bill discloses that there were articles of partnership, by which the rights and interests of the partners inter se were necessarily determined: such documentary evidence should be shown to the Court, when an ex-parte order is asked, yet these articles of partnership were not produced, nor is their non-production accounted for, or excused, nor is any call even made on the defendants to produce them.Waters vs. Taylor,15 Ves., 15.The same observation may be applied to the entries in the cash book, and to the stated account taken the 1st of July 1861.The defendants were both in Baltimore, within five minutes walk of the Court house, and their representation might have been obtained without loss of time, or possibility of prejudice to the complainant.

The property in question, carriages, and materials for making carriages, was not of such kind as to justify the apprehension of its being very speedily made way with.There was no sufficient ground for such an injunction as was prayed by the complainant, more especially in the absence of the articles of partnership; it was only meant to be in aid of the receivership, and the order ought therefore to be reversed in this respect also.

No counsel appeared for the appellee.

OPINION

BARTOL, J.

This is an appeal from an order of the Circuit Court for Baltimore city, granting an injunction and appointing a receiver.By the 21st sec. of the 5th Art. of the Code of Gen. Laws, the right of appeal from such an order is given, " the answer of the party appealing being first filed in the cause."In this respect the provisions of the Code are identical with those of the Act of 1835, ch. 380; and must be construed in the same way.According to the uniform course of decisions...