Md. Cas. Co. v. State to Use of First Sav. & Loan Ass'n, Inc.

• Decision Date: 18 November 1920
• Docket Number: No. 7.,7.
• Citation: 111 A. 825
• Parties: MARYLAND CASUALTY CO. v. STATE to Use of FIRST SAVINGS & LOAN ASS'N, Inc.
• Court: Maryland Court of Appeals

111 A. 825

MARYLAND CASUALTY CO.

v. STATE to Use of FIRST SAVINGS & LOAN ASS'N, Inc.

No. 7.

Court of Appeals of Maryland.

Nov. 18, 1920.

Appeal from Superior Court of Baltimore City; Henry Duffy, Judge. "To be officially reported."

Action by the State of Maryland, to the use of the First Savings & Loan Association, Incorporated, against the Maryland Casualty Company. Judgment for plaintiff, and defendant; appeals. Reversed, and new trial ordered.

Following are the prayers and special exception referred to in opinion:

Plaintiff's First Prayer.

The plaintiff, by its counsel, prays the court, sitting as court and jury, to rule as the law in this case that, if the court shall find from the evidence in this case that David B. Kirsner was duly appointed administrator c. t. a. of the estate of Isaac Baer, deceased, by the orphans' court of Baltimore City, that he accepted said appointment and gave the bond offered in evidence, and duly entered upon the discharge of the duties as administrator c. t. a., and that the plaintiff duly presented its claim to the orphans' court of Baltimore City, and that the same was approved by the said court on the 18th day of July, 1916, and that the administrator, David B. Kirsner, had due notice thereof, and that afterwards, to wit, on the 25th day of July, 1916, had stated and filed in the said court an account whereby he distributed the estate of the said Tsaac Baer, deceased, and if the said court shall further find that the said David B. Kirsner, at the time of the filing of said claim, the said David B. Kirsner had in hand more than sufficient funds with which to pay the plaintiff's claim, but failed to pay the same, and if the court, sitting as court and jury, shall further find that the said defendant, the Maryland Casualty Company, as described in the evidence in this case, became surety for the said David B. Kirsner at the time of the granting of the said letters of administration, and shall also further find that the said plaintiff afterwards sued the said David B. Kirsner, administrator as aforesaid on the said claim, in the superior court of Baltimore City and obtained a judgment thereon for the sum of $164.20 and interest and costs, and afterwards caused an execution to be issued thereon out of this court, directed to the sheriff of Baltimore City which was duly returned "nulla bona" prior to the institution of this suit, then the verdict of this court should be for the plaintiff in this case.

(Granted.)

Plaintiff's Second Prayer.

The plaintiff further prays the court to rule as the law in this case that, if the court shall find for the plaintiff in the plaintiff's first prayer, that the verdict of the court, sitting as a jury, should be the amount of the judgment heretofore recovered by the said plaintiff against the said David B. Kirsner, administrator, with costs and interests.

(Granted.)

Defendant's First Prayer.

The defendant prays the court, sitting as a jury, to instruct itself that under the pleadings in this case there is no legally sufficient evidence to entitle the plaintiff to recover, because it appears from the uncontradicted evidence in this case that plaintiff did not commence a suit for recovery of its claim against the estate of Isaac Baer within nine months after its rejection by Dave B. Kirsner, administrator c. t. a. of the said Isaac Baer.

(Refused.)

Defendant's Second Prayer.

The defendant prays the court to instruct itself, sitting as a jury, that if it believes from the evidence that Dave B. Kirsner, administrator c. t. a. of the estate of Isaac Baer, gave the six months' notice to creditors, as testified to in evidence, that on the 18th day of July, 1916, the plaintiff's claim against the estate of Isaac Baer was passed by the orphans' court of Baltimore City, and entered by the register of wills of said city upon his docket of accounts, as testified to in evidence, that the said administrator on the 25th day of July, 1916, filed his administration and distribution account offered in evidence, and that plaintiff's said claims were not allowed in said account, and further that plaintiff had notice thereof for nine months before the institution of the action in this court on the 31st day of May, 1917, by the plaintiff in this action against the said Dave B. Kirsner, administrator as aforesaid, that then the verdict of the court, sitting as a jury, should be for the defendant.

(Refused.)

Defendant's Third Prayer.

The defendant prays the court to instruct itself, sitting as a jury, that if it believes from the evidence that the plaintiff's claims against the estate of Isaac Baer were passed by the orphans' court of Baltimore City, and that payment of the claims was demanded by plaintiff, and refused by Dave B. Kirsner, administrator c. t. a. of said Isaac Baer, that then the plaintiff cannot recover unless suit for recovery of said claims was commenced within nine months after such rejection, and that, if the court, sitting as a jury, shall believe from the evidence that suit was not commenced within nine months after such rejection, that then the verdict of the court, sitting as a jury, should be for the defendant.

(Refused.)

Defendant's Fourth Prayer.

The defendant prays the court to rule as a matter of law that, if the court, sitting without a jury, shall find as matter of fact that the said Dave B. Kirsner, administrator, had paid away and distributed all of the assets of the estate to persons entitled under the law, and further find that said administrator had given the notice to creditors in the manner provided by law, and further find that the statutory period of six months had expired within which creditors are required and permitted to file their claims, and further find that before the claims of the plaintiff were exhibited to the administrator or the register of wills that the administrator had made distribution of all of the assets coming into his hands and also that no further assets came into his hands after said claim was filed, then the verdict of the court shall be for the defendant.

(Granted.)

Defendant's Fifth Prayer.

The defendant prays the court to rule as a matter of law that there is no evidence in this case legally sufficient to entitle the plaintiff to recover, and that the verdict of the court, sitting as a jury, shall be for the defendant.

(Refused.)

Defendant's Special Exception to Plaintiff's First Prayer.

The defendant, by its counsel, excepts specially with granting of the plaintiff's first prayer because there is no evidence in this case legally sufficient to prove that Kirsner, as administrator, had any funds of the estate in his hands at the time the plaintiff's claim was filed.

Argued before Boyd, C. J. and BRISCOE, THOMAS, PATTISON, ADKINS, and OFFUTT, JJ.

Charles T. Reifsnider and Walter L. Clark, both of Baltimore (Dave B. Kirsner, of Baltimore, on the brief), for appellant.

Harry T. Kellman, of Baltimore (Robert W. Mobray, of Baltimore, on the brief), for appellee.

ADKINS, J. The appeal in this case is from a judgment against the Maryland Casualty Company, as surety of Dave B. Kirsner, administrator c. t. a. of the estate of Isaac Baer, deceased. Isaac Baer died on October 3, 1915. His will was duly probated and letters were granted to Kirsner on October 27, 1915, who duly qualified. Notice to creditors was published October 27, 1915.

The First Savings & Loan Association, Incorporated, the appellee here, filed its claim against the deceased July 18, 1916, which was duly passed by the orphans' court of Baltimore City. An administration account was filed by the administrator on July 25, 1916, distributing all the assets of the estate, but the claim of appellee was not included in said account nor was any money withheld to pay the same. On May 31, 1917, appellee filed a suit on said claim against the administrator in the superior court of Baltimore City, and obtained judgment against the administrator for $164.20, with interest from May 31, 1918, and costs, and execution was issued on said judgment to the sheriff of Baltimore City, and the return of the sheriff thereon was "nulla bona."

Suit on the bond against the appellee was docketed in the superior court of Baltimore City on November 16, 1918, in which judgment was recovered by the appellant for $190.72.

The declaration recites the appointment and qualification of Kirsner as administrator c. t. a., and charges that he did not perform the duties required of...