Howard v. Oppenheimer

• Decision Date: 11 July 1866
• Citation: 25 Md. 350
• Parties: GEORGE W. HOWARD ET. AL. v. ISAAC OPPENHEIMER, CLAIMANT AND GARNISHEE OF ERNEST OPPENHEIMER.
• Court: Maryland Court of Appeals

25 Md. 350

GEORGE W. HOWARD ET. AL. v. ISAAC OPPENHEIMER, CLAIMANT AND GARNISHEE OF ERNEST OPPENHEIMER.

Court of Appeals of Maryland

July 11, 1866

But an agreement and preparation for a submission to and trial by the court of the cause upon its merits having been made by the parties, and the court having taken cognizance of it, as it could do in such a case, in this summary way and in a summary proceeding, an objection then made to its exercise of the right by the court to try the merits of the case comes too late.

APPEAL from the Superior Court of Baltimore city.

This is an appeal from an order of the Superior Court of Baltimore city, (MARTIN, J.,) of the 26th of November, 1864, sustaining a motion to quash an attachment on original process issued on the 16th of June, 1864, from said Court, under the Act of 1864, ch. 306, and laid in the hands of Isaac Oppenheimer, against certain goods which, it was charged, had been conveyed and made over to him by his brother, Ernest Oppenheimer, with intent to defraud his creditors. A full statement of the case is made in the opinion of this court.

The cause was argued before GOLDSBOROUGH, COCHRAN, and WEISEL, J.

George W. Brown and Arthur G. Brown, for the appellants:

1st. While it is true that Courts have control over their own process, and may, therefore, in attachment suits, as in other cases, interfere, on motion in a clear case, to prevent injustice being done by the wrongful exercise of the process of the court, yet a court has no right, on such preliminary motion, to try and decide the merits of the case. To do so would not only be irregular, but would intrench on the proper functions of the jury. Declaration of Rights, Arts. IV. and XXIII. Constitution, Art XII., sec. 5. Drake on Attachment, § § 348 416, 417. Campbell vs. Morris, 3 H. & McH., 552, 553. Barr vs. Perry, 3 Gill, 823, 824 826. Bank of Com. vs. Rutland, & c., 10 How. Pr Rep., 7. Spear, et al., vs. King, 6 Smedes & Marsh, 284. Boscher vs. Rouiller, 4 Abbott's Pr. R., 396. Stewart vs Mayer, 7 Md. Rep., 500, 511, 512, 513, &c. 3 Martin, (La. R.,) 366. Rice vs. Brady, 2 Cal., 132.

2nd. Although in Maryland, in cases arising under the old attachment law, greater latitude was allowed to our Courts on hearing motions to quash attachments than in most other States, they have never done more than inquire into certain collateral and incidental matters dehors the main issue. See Campbell vs. Morris before cited.

The Court of Appeals, in a late case arising under the attachment laws, Lamden vs. Bowie, 2 Md. Rep., 334, reviewed and fully confirmed the decision in Campbell vs. Morris, quoted above, the Court coming to this conclusion, (p. 339:) "In view of this and the other Maryland cases referred to, we think that such defects not apparent in the proceeding upon attachment, as according to the authority of Campbell vs. Morris might be made available on a motion to quash, may now be used in the same manner, or may be pleaded at the option of the garnishee."

3rd. It is material to observe the difference between the attachment law of 1795, ch. 56, under which all the cases above cited arose, and the Act of 1864, ch. 306, now in force. It is perfectly evident that debt was the gist of the action under the old attachment law, (Campbell vs. Morris, 3 H. & McH., 552,) while fraud, as well as debt, is that of the new. Therefore, the question of fraud, or of fraudulent intent, is now as exclusively a question for the jury, and as strictly denied to the consideration of the Court as the question of indebtedness was under the old law. In the absence, then, of defects in the proceedings, "the merits of the case," (here the question of fraud,) should be left to the jury.

Therefore, where a claimant sets up a right to property attached under the Act of 1864, and under a transfer alleged to be fraudulent, and which fraud is a matter to be inquired of in a proceeding under said law, this fraud constitutes the gist of the action, and should be determined by the jury, and not on a motion to quash. 1 Smith's Leading Cases, 11. Dewly vs. Bayntum, 6 East., 282. Lindon vs. Sharp, 6 Man. & Granger, 898.

II.--1. Even if the Court has jurisdiction in this case to try the question of fraud on a motion to quash, yet, where there are conflicting affidavits and the question is involved in doubt, it should not be decided by the Court, but be submitted to the jury. In all common law cases to be tried before a Court and jury, fraud is a question to be decided by the jury. 1 Smith's Leading Cases, 11. Hanford vs. Archer, 4 Hill, (N. Y.,) 305.

III.--The transactions between Ernest Oppenheimer and his brother, Isaac, in reference to the sale of these goods attached by Howard, Cole & Co., are marked by nearly every badge of fraud that has ever been recognized by the Court. This will be best shown by a brief summary of the evidence as set forth in the record.

Ernest Oppenheimer, a merchant doing business in the city of Baltimore, bought during March and April, 1864, from Howard, Cole & Co., dry goods to the amount of $711.66, as per bill rendered.

About May 29th, Wm. H. Myers, a clerk of plaintiffs, called on Ernest Oppenheimer about this bill. Oppenheimer complained of having been robbed, but put off Myers with promises of early payment. "Ten or twelve days afterwards," (June 8th to 10th,) Myers again called on E. Oppenheimer for payment, when he said: "Mr. Myers, you need not be uneasy about the debt, if I have time I will pay the whole of it, but I must have time; I only owe a few hundred dollars besides your claim, and some other debts of small amounts, and also some two or three hundred dollars to the bank, which I want to pay first." He also said, "here is my stock, enough to pay my debts, but I want time."

Between the dates of these conversations, viz., on June 3rd, 1864, Ernest Oppenheimer executed a bill of sale, by which, for $2,500, he sold to his brother, Isaac Oppenheimer, "All the goods, wares, merchandize and household furniture belonging to me, and contained in the two adjoining houses known as numbers 250 and 252 South Charles street, in said city, and which consists in part of the following named articles, that is to say: Cassimeres, calicoes, dress goods, domestic goods, ribbons, bonnets, hosiery, fancy goods, and notions, and also store fixtures, and also beds, bedsteads and bedding, one sofa, walnut and common chairs, easy chair, looking glasses, stands, tables, bureaus, stoves, clocks, carpets, kitchen and table utensils, glass-ware and cutlery, together with all other chattels of every kind now being in said houses and belonging to me."

It does not appear that Ernest Oppenheimer had any property whatever other than that assigned by this bill of sale.

The testimony of Ernest Oppenheimer was that Isaac Oppenheimer, the claimant in this case, is a shoe maker, talks very little English, knows nothing about the dry goods business, and still keeps his shoe store; that he is not acquainted with the value of dry goods, and took the stock and furniture entirely on the witness' statement; from the date of the bill of sale till the attachment was served, the witness carried on the store as his brother Isaac's "agent;" did not keep any books or accounts while acting as agent, nor had he done so for some years previously; that Isaac told him to carry on the store for him; there was no written agreement, and he has never paid the witness anything for his services, though he promised to do so; and that there was no list of property except that in the bill of sale; that the witness included all his furniture and household goods in the bill of sale, and is now using the same furniture, and has never bought it back; that he was induced to part with all his family effects in order to raise money to pay his debts; that he has not paid them all, and does not know how much he owes, and keeps no books; that he has paid sundry bills amounting in the aggregate to a little upwards of $1000, and has no doubt the plaintiff's bill is correct, but has not paid it; and that he has spent a portion of the $2,000 received from his brother, and has a portion still in hand. Almost every recognized badge of fraud is here apparent. See Twyne's Case, 1 Smith's Leading Cases, 1.

1st. This sale had the signs and marks of fraud, because the sale is general, without exception of his apparel or any thing of necessity, for it is commonly said quod dolosus versatur in generalibus. Lindon vs. Sharp, 7 Scott's N. R., 745.

2nd. The grantor continued in possession and used them as his own. 1 Code, 128.

3rd. Here was a trust between the parties, for the grantor possessed all and used them as his proper goods, and fraud is always apparalled and clad with a trust, and trust is the cover of fraud. Archy vs. Hobden, 4 Wend., 514. Burwell on Science, 68. 42 N. H., 510. Hudson vs. Warner & Vance, 2 H. & G., 415.

4th. The conveyance was of the whole or greater part of the grantor's property, for no man can voluntarily divest himself of all, or the most of what he has, without being aware that his creditors will suffer for it. Jacob & Tomlin's Law Dic., Tit. Fraud, II.

5th. It was out of the usual course of business. Pilling vs. Otis, 13 Wis., 495.

6th. The Act of Assembly (1864, ch. 306,) under which this attachment was brought, only requires proof of fraudulent intent towards his creditors on the part of the debtor himself. It is, therefore, immaterial whether or not there is sufficient proof of fraud on the part of Isaac Oppenheimer, the grantee in this bill of sale.

7th. The fact that the bill of sale from Ernest to Isaac Oppenheimer was put upon record does not preclude the Court and jury from taking into consideration the fact of the continued possession...