Laupheimer v. Rosenbaum

• Decision Date: 28 June 1866
• Citation: 25 Md. 219
• Parties: JACOB LAUPHEIMER v. JOSEPH ROSENBAUM, et als.
• Court: Maryland Court of Appeals

25 Md. 219

JACOB LAUPHEIMER v. JOSEPH ROSENBAUM, et als.

Court of Appeals of Maryland

June 28, 1866

To warrant a court of chancery in issuing a preliminary injunction, strong prima facie evidence of the facts on which complainant's equity rests must be presented to the court.

APPEAL from the Circuit Court of Baltimore city:

The bill of complaint in this case was filed by the appellees against the appellant, in the Circuit Court of Baltimore city, on the 24th of December, 1863, praying for an injunction to restrain further proceedings under a bill in equity previously filed in the same Court to set aside a deed of trust, as well as certain proceedings by attachment instituted for the purpose of reaching the proceeds of sale of the property conveyed by said deed of trust in the hands of the trustee. The allegations of the bill and facts of the case are fully set forth in the opinion of this Court.

This appeal of Jacob Laupheimer is from an order of said Court (ALEXANDER, J.,) refusing to dissolve an injunction before issued in the case, and continuing the same until final hearing.

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

P McLaughlin, for the appellant:

The appellant in this cause insists on the following points, viz:

1st. The evidence before the Court was insufficient on which to grant an injunction. There ought to have been filed as an exhibit in this case a copy of the bill filed to set aside the deed. Union Bank vs. Poultney, 8 G. & J., 324, 332. Nusbaum vs. Stein, 12 Md Rep., 315, 318, 319, 321. Mahoney vs. Lazier, 16 Md. Rep., 69, 73. Haight vs O'Connell, 19 Md. Rep., 130, 135.

2nd. A simple reference to a paper does not make it an exhibit. Hodson vs. Warrington, 3 P. Wms., 34, 35. Equity Draftsman, 3, 4, 72.

3rd. There is no ground for the allegation in the bill that the injunction would prevent a multiplicity of suits. The bill ought to show where and how this would be done, and the statements in the bill are insufficient for that purpose. Townshend vs. Duncan, 2 Bland, 45, 48. Green vs. Keene, 4 Md. Rep., 98.

4th. The Court will not restrain a creditor until there is a decree under which he can come in and prove his debts. 2 Story's Eq., 5890. Rankin vs. Harwood, 2 Phillips, 22. Ellicott vs. The U.S. Ins. Co., 7 Gill, 307, 319.

5th. Several creditors' bills may be conducted by different parties for the same purpose, at the same time, and neither can restrain the other before there is a decree. Rankin vs. Harwood, 2 Phillips, 22. Hammond vs. Hammond, 2 Bland, 316, 361. Brooke vs. Gibbons, 4 Paige, 374.

A creditor cannot file a bill after decree on creditors' bill under which he may come in. Brooke vs. Gibbons, 4 Paige, 374, 376, 377. Thompson vs. Brown, 4 John. Ch. Rep., 619, 630, 646, where all previous authorities are carefully reviewed by Chancellor Kent. Delaney vs. Mansfield, 1 Hogan, 234, 236. Here there were two bills in reference to the same subject matter. Pechford vs. Hunter, 5 Sim., 122. In this case the plea of former decree was overruled, because it was not as beneficial as that which might be obtained on the second bill. Kent vs. Pickering, 5 Sim., 569. Levrewey vs. Featherest, 2 Merr., 479. Motion refused. Pott vs. Gallini, 1 Sim. & Stu., 206. Here there was a second decree, because the decree in the first suit was not sufficiently extensive for the purpose. Ibid, 232.

6th. Upon the allegations of the bill in this case, the deed of trust could not be set aside. Lingan vs. Henderson, 1 Bland, 236, 249, 250. Story's Eq. Pl., sec. 27, 28, 257. Welford's Eq. Pl., 54. 1 Daniel's Ch. Pr., 377. Allen vs. Burke, 2 Md. Ch. Dec., 534, 538. Townshend vs. Duncan, 2 Bland, 45, 48.

7th. Any of the parties to a creditor's bill, in case of improper delay by the complainant may be permitted to take his place and prosecute the suit. 2 Bland, 306, 363. 2 Daniel's Ch. Pr., 931. Story's Eq. Pl., sec. 793.

Wm. A. Fisher, for the appellees:

1st. The fund having remained unproductive in the hands of the assignee, by reason of the pendency of the suits enjoined, and there being well grounded reason for apprehension that it would be, to a considerable extent, wasted in the costs of conducting so many separate suits, the power of the Court below to act in the premises can be sustained upon several well settled grounds in equity jurisprudence. The fund was clothed with a trust; the interference by injunction prevented a multiplicity of suits, the prevention of which is, of itself, a ground of original jurisdiction; it protected the fund from being wasted in costs. The Court has power to preserve property in dispute pending a litigation, and, having acquired original jurisdiction for this purpose, it will proceed to settle the rights of the parties. The object of the bill was not merely to carry the trusts of the deed, but to settle the rights of all parties to the fund in controversy. 1 Story's Eq. Jur., secs. 64, &c., and 65.3 Daniels' Ch. Pl. & Pr., 1962, 2010. 2 Fonbl. Eq., B., 6, ch. 3, sec. 6. Keighler vs. Ward, 8 Md. Rep., 266.

2nd. The exercise of the jurisdiction of the Court in saving the fund necessarily required that the suit should be enjoined, because it was in the costs of those suits that a part of the waste consisted, and because by those suits judgments of condemnation, and decrees were sought against the assignee, and the Court could not properly compel him to bring in the funds without enjoining the suits.

3rd. There is no hardship upon any one, inasmuch as any priorities acquired by any persons are protected; and the Court was at liberty to compel the assignee to account for the moneys in his hands, whatever might be the fate of the deed.

4th. The appeal is taken from the order refusing to dissolve; but none has been taken from the order discharging Mr. Mathews from the trust, and cancelling his bond. These orders having occurred in a case to which the appellant was a party, the Court exercised a wise discretion in continuing the injunction.

5th. The allegation of the appellant is, that the application to have the fund brought into Court could and should have been made in the case to which he was complainant. To this it is a sufficient answer in this Court, that the judge of the Court below has determined otherwise, and as the bill referred to has not been inserted in the record, it will be presumed that, looking to the nature of that bill, he acted properly. Sufficient appears, however, in the record, to show that the appellees were not parties to that proceeding, and that it was based upon the supposed invalidity of the deed to Mathews; this position is inconsistent with the existence of such relations as to authorize an order to bring the fund into Court, even if the appellees had been parties. Bridges vs. Woods, 16 Md. Rep., 101. 3 Daniel's Ch. Pl. and Pr., 2010, 2011.

WEISEL J., delivered the opinion of this Court.

This appeal is from an order of the Circuit Court of Baltimore city, passed on the 27th of June, 1865, refusing to dissolve an injunction, and continuing it until the final hearing.

It appears that Louis Harrison and Samuel K. Davidson, merchants of Baltimore, executed to R. Stockett Matthews, Esq., on the 18th day of February, 1861, a deed of trust of all their property and effects of every kind to be sold, and the proceeds applied to the payment of their debts, in the manner specified in said deed, which was duly acknowledged, sworn to and recorded. Mr. Matthews accepted the trust, took possession of the property, converted it into money by sales and collections, and had a large amount in hand for disposal under the deed.

On the 11th day of August, 1862, some of the creditors, viz: Jacob Laupheimer, Adolphus Heilburn, Samuel Moore and William Rogers (the last two trading as Samuel Moore & Company) filed a bill in the Circuit Court of Baltimore city, the object of which was to procure a decree to set aside said deed of trust; whilst others of said creditors, viz: the said Laupheimer, Johnston, Bros. & Co., and Moses Cohen respectively, issued attachments out of the Superior Court of Baltimore city, and the said Heilburn a similar writ out of the Court of Common Pleas of said city, and procured the same to be laid in the hands of the trustee, Mr. Matthews, in order to reach the property or its proceeds in his hands as garnishee of said debtors, Harrison & Davidson. Pending this bill in equity, and these attachment proceedings at law, the bill in which the injunction was asked and obtained was filed on the 24th day of December, 1863, in said Circuit Court of Baltimore city, the same Court in which the other bill above referred to was pending. This new or second bill was filed by Joseph Rosenbaum and others, some of the preferred creditors in said deed of trust, whose claims were directed to be paid under the third clause thereof, against the grantors, the trustee, and the other creditors, setting forth the deed of trust and its terms, with an exhibit of a copy of it, and the possession of the trust funds by Matthews, "which have remained for some time in his hands owing to the other proceedings." These proceedings are then referred to by the names of the complainants in equity, and the plaintiffs in the attachments, with the date of the filing of the bill, and a general statement of its object in these words: "in which they prayed that the said assignment might be set aside;" averring that they have been pending for more than eighteen months, that the attachments have been continued from term to term without trial, and that in consequence thereof the settlement of the trust had been delayed and the funds continued unproductive in the hands of the trustee. The bill then claims, with a view to the prevention of a multiplicity of suits, the...