Heck v. Vollmer

• Decision Date: 10 December 1868
• Parties: LOUISA HECK v. CHRISTIAN VOLLMER, JOHN F. HECK and JOHN W. DAVIS.
• Court: Maryland Court of Appeals

29 Md. 507

LOUISA HECK v. CHRISTIAN VOLLMER, JOHN F. HECK and JOHN W. DAVIS.

Court of Appeals of Maryland

December 10, 1868

APPEAL from the Circuit Court of Baltimore City.

The bill in this case was filed on the 4th of December, 1867, by the appellant, the wife of John F. Heck, in her own name against the appellees. It alleged that the appellee Vollmer had recovered a judgment against the appellee Heck, in the Court of Common Pleas, and that thereupon execution had been issued, and the same levied by the appellee Davis, Sheriff of Baltimore city, upon the property of the complainant, and that he was about to sell the same in satisfaction of the judgment. The bill prayed that an injunction might issue to restrain the appellees Vollmer and Davis from further proceeding to enforce the judgment. The injunction issued as prayed. On the 4th of January, 1868, Vollmer answered the bill and moved to dissolve the injunction. This motion was assigned for hearing on the 12th of March, following, and on the 3d of April following, no counsel appearing for the complainant, and the solicitor for the respondent submitting the case without argument, the injunction was dissolved. A few days afterwards the appellant filed her petition, asking that the order dissolving the injunction might be rescinded. The Court (PINKNEY, J.) dismissed the petition, and thereupon the present appeal was taken.

The cause was submitted to BARTOL, C.J., GRASON, MILLER and ALVEY, J.

T R. Clendinen and A. W. Wilson, for the appellant:

The motion to dissolve the injunction should not have been heard until all the defendants had answered, for certainly some measures by rule "further proceedings" or otherwise, should have been taken to compel the answer of the other defendants; this is the ancient and well settled rule. Jones vs. Magill, 1 Bl., 177; Jenifer vs. Stone, 1 Bl., 188, note; McMechen vs Story, 1 Bl., 183, note; Cape Sable Company's case, 3 Bl., 606. The appellant was entitled to relief by injunction, and the husband was a necessary party defendant, who should have answered. Bridges and Woods vs. McKenna, 14 Md Rep., 258.

The discretion vested in the Court with regard to the rescission of an order is a sound legal discretion, and the abuse of it should be a fit subject for an appeal. Briesch vs. McCauley, 7 Gill, 190; McPherson vs. Israel, 5 G. & J., 64; Ringold's case, 1 Bl., 5; Fearne on Contingent Remainders, 535; Coke Little., 237, ( b;) Thompson vs. McKim, 6 H. & J., 362, and cases there cited; Union Bank vs. Ridgely, 1 H. & J., 324; Warfield vs. Warfield, 5 H. & J., 459.

W. J. Waterman, for Christian Vollmer:

A motion to strike out a judgment or rescind an order, is one addressed to the sound discretion of the Court, and may not be appealed from. Rutherford vs. Gardner's Ex'rs, 15 Md. Rep., 579.

The matter was properly before the Court on bill and answer; and the latter being responsive to the bill, and denying its equities, the law so often pronounced by this Court, and so emphatically enforced in Gelston vs. Rullman et al., 15 Md. Rep., 260, applies that the sworn answer out-weighs the bill. The Court therefore could not have pursued any other course than dissolve the injunction.

ALVEY J., delivered the opinion of the Court.

The appeal was taken in this case, as we suppose, though it does not very distinctly appear, from the order dissolving the injunction.

It is not contended, on this appeal, that the answer of Vollmer does not swear away the equity of the bill, nor that it is in any respect insufficient in its averments to justify the dissolution of the injunction. But it is contended, that because there were two other defendants to the bill, who had not answered, the Court below was in error in dissolving the injunction before their answers were filed.

As a general rule, it is no doubt true, that where there are several defendants to the bill, a motion to dissolve the injunction should not be heard until they have all answered. This is so where the injunction has been properly granted in the first instance; for it is competent to the parties affected by the injunction to come in at once, and before answer, and move to dissolve upon the insufficiency of the grounds disclosed by the bill. Minturn vs. Seymour, 4 John. Ch. Rep., 173; Poor vs. Carlton, 3 Sum., 70.

But this general rule, requiring the answers of all the defendants to be in before motion to dissolve, has exceptions, and is subject to discretion and modification, according to the circumstances of the case; as where those not answering are mere formal parties, or are infants, or non-residents, and whose answers cannot be material in regard to the facts on which the injunction is founded; there the answers of such parties will not be required as a pre-requisite to hearing the motion.

Where all, or any particular number, of the defendants are implicated in the same charge, and that charge forms the material ground for sustaining the injunction, there the answers of all, or as many as may be so implicated, should be required before dissolving the injunction, unless for some special reasons...