Lovejoy v. Irelan

• Decision Date: 29 October 1861
• Parties: PERLEY R. LOVEJOY v. EDWARD IRELAN.
• Court: Maryland Court of Appeals

17 Md. 525

PERLEY R. LOVEJOY v. EDWARD IRELAN.

Court of Appeals of Maryland.

October 29, 1861

From a joint decree against several, one defendant alone cannot appeal, without summons and severance and his appeal so taken will, on motion, be dismissed.

To a bill to vacate a deed as fraudulent as against the creditors of the grantee, the grantor is a necessary party, as well on account of the fraud charged, as because of the title remaining in him for the benefit of creditors.

General rules framed to protect the rights of suitors, and to promote regularity of judicial proceedings, should not be dispensed with to meet the exigencies of special cases.

APPEAL from the Circuit Court for Baltimore city.

In this case, a bill was filed on the 22nd of February 1856, by the appellee against the appellant and one Harlow W. Heath, to vacate and set aside a bill of sale from the said Heath to Lovejoy, as fraudulent as against the creditors of the grantor. Upon bill, answers and proof, the court below (KREBS, J.) passed a decree vacating the bill of sale, and against both defendants for costs. From this decree Lovejoy alone appealed, and the appellee moved to dismiss the appeal.

This motion was argued in connection with the merits, at the December term 1859 of this court, before ECCLESTON, TUCK and BARTOL, J.

Benj. C. Barroll, for the motion:

One party alone cannot appeal from a joint decree or judgment against several, without summons and severance. 2 Overt., 189. 2 J. J. Marshall, 72 Young vs. Ditto. 3 How., (Miss. Rep.,) 43 Green vs. Planters Bank. 5 How., (Miss Rep.,) 12, Duvall vs. Cox. 11 Wheat., 414, Williams vs. Bank of U. S. 7 Pet., 399, Owings vs. Kincannon. 12 Pet., 140, Wilson's heirs vs. Ins. Co. 16 Pet., 521, Todd vs. Daniel. 4 Md. Rep., 517, Price & Martin, vs. Thomas & George. 5 Md. Rep., 477, Alexander vs. Worthington.

Henry Stockbridge, against the motion:

The Act of 1814, ch. 94, sec. 5, provides, " that all and every person or persons" who shall or may think themselves aggrieved by any decree of an equity court, " shall be at liberty in all cases to appeal." No Maryland case can be found in which it has been held that one of several defendants may not appeal, and there are numerous cases in which such appeals have been taken and sustained without question. Most of the cases cited on the other side are cases at law and not in equity, where the practice of summons and severance has never, even in England, been held to apply. Besides, in this case Heath was examined as a witness, and applied for the benefit of the insolvent laws, and was duly discharged thereunder prior to the appeal, and had, therefore, no interest whatever in the decree.

OPINION

TUCK, J.

Upon the pleadings and proofs in this cause, a decree was passed vacating a deed from Heath to Lovejoy, on the ground of fraud as against the creditors of the grantor, and giving costs against both defendants. Lovejoy only has appealed, and the appellee having moved to dismiss the appeal on account of the non-joinder of the other defendant, our duty is to inquire whether the appeal lies.

It has always been the practice in this State, to make the grantor a defendant to bills of this kind, and we consider the law to be well settled that he is a necessary party, as well on account of the fraud charged, (Calvert on Parties, 19, 20, 24, 264,) as because of the title remaining in him for the benefit of creditors. Waters vs. Dashiell, 1 Md. Rep., 470. This being so, the decree in this case must be treated as joint against both defendants, not only as to costs, but also as to the relief granted.

We have not been referred to any case in Maryland where the point under consideration has been decided, but there is no doubt that, in cases at common law, a writ of error brought by one of several defendants, could not be maintained. Tidd's Prac., 1189, 1226. The same has been held in this country. Duvall vs. Cox, 5 How., (Miss. Rep.,) 12. 3 Ibid., 43, Green vs. Planters Bank. Young vs. Ditto, 2 J. J. Marshall, 72. The question has been before the Supreme Court of the United States several times, and uniformly disposed of by disallowing the appeal, without reference to the character of the case, whether at law or in equity. In Owings vs. Kincannon, 7 Pet., 399--a case in equity--Chief Justice Marshall, delivering the opinion of the court, said: " Upon principle, it would seem reasonable that the whole cause ought to be brought before the court, and that all the parties who are united in interest ought to unite in the appeal." He also adverted to the general usage of chancery, to make one final decree, binding on all parties united in interest. See, also, Deneale vs. Archer, 8 Pet., 526. These cases were afterwards (Wilson's heirs vs. Ins. Co., 12 Pet., 140,) referred to by Chief Justice Taney, and the same principle applied.

The considerations on which this practice is followed elsewhere, apply in our courts, and ought to have the same effect. Inconvenience may sometimes result to parties in the particular instance, but general rules framed to protect the rights of suitors, and to promote regularity of judicial proceedings, should not be dispensed with to meet the exigencies of special cases. The law indicates a mode, by summons and severance, for one party to compel his co-defendant to join in the appeal, or place himself in a position to proceed in his own behalf. Tidd's Prac., 1189.

It is proper to observe that a similar point was ruled at this term, against the motion to dismiss in the case of Easter, et al., vs. Travers, et al., but on the ground that the order appealed from was not joint as against the parties; the court expressly stating that in a proper case such a motion might prevail.

Without expressing any opinion as to the merits of the case, we think the appeal should be dismissed, with costs.

Appeal dismissed.

Note by the Reporter. --In the case of Easter, et al., vs. Travers, et al., above referred to, no opinion was filed by the court, the appeal having been dismissed by order of the appellants, after the motion to dismiss had been decided in their favor, and it has not, therefore, been reported. In the argument upon the motion in that case, the same authorities were cited in support of the motion as by the appellee in this case.

At the same term at which the case was decided, the appellant applied for a re-hearing on the motion to dismiss, which was granted, and the same was re-argued before LE GRAND, C. J., TUCK and BARTOL, J.

Henry Stockbridge, against the motion:

The question presented by this motion does not appear to have been, at any time heretofore, formally and specifically urged as a ground for the dismissal of an appeal in Maryland, except in the case of Price vs. Thomas, 4 Md. Rep., 515, which was a case at law, and where the objection was so obviated before decision, that this court did not decide upon the point. The fact that, in the whole judicial history of our State, no appellant has ever been refused his appeal upon this ground, while so many cases must have been before the court in which the point, if a sound one, might have been made, argues strongly that the motion now under consideration is based neither on law nor sound reason. The importance of the question which it raises cannot be over-estimated. To deny to one defendant the right to appeal, unless all of his co-defendants will concur and join to pray and to prosecute the appeal, is to place every man at the mercy of a reckless plaintiff and a corrupt co-defendant, and gives the inferior court a power which this appellant believes was never conferred by the Constitution or laws of the State.

The facts of the case now to be decided, (so far as it is necessary to state them, for a correct decision of the question,) as shown by the record, are as follows: On the 9th of February 1856, Heath executed, for the consideration of $750, to Lovejoy a bill of sale of certain goods, chattels & c., therein specified and named. On the 22nd of February 1856, the appellee, Irelan, filed in the circuit court of Baltimore city his bill of complaint, alleging that said bill of sale was fraudulent, and made for the purpose of hindering, delaying and defrauding said appellee, as creditor of said Heath; praying that said bill of sale might be set aside as fraudulent and void; that the said Heath might be required to discover, upon oath, certain matters to him propounded, and that said Heath and Lovejoy might answer the premises upon oath. On the 19th of March 1856, Heath, in person, upon oath, filed his answer to the bill, utterly denying the alleged fraudulent intent, and declaring the whole transaction bona fide. On the 17th of May 1856, Lovejoy, by his counsel, filed his answer to the bill, duly sworn to, denying all the charges of collusion and fraudulent intent, and averring that it was bona fide in every respect. On the 27th of June 1856, the complainant, Irelan, applied to the court, by petition, for an order allowing him to examine the defendants, Heath and Lovejoy, as witnesses in the cause, to sustain the allegations of the bill, and the court the same day passed the order as prayed. On the 11th and 25th of February 1857, Heath was examined as a witness in the cause by the complainant, under the authority of such order; Lovejoy was never called to the stand, nor examined by him. On the 16th of May 1857, Heath applied for the benefit of the insolvent laws, and was duly discharged thereunder. On the 9th of April 1858, the complainant, by his counsel, filed a paper procured from and signed by Heath, in which, in consequence of his discharge under the insolvent laws, he withdraws all objections to his examination as a witness in said cause. On the 3rd of ...