Morgan v. Toot

• Court: Maryland Supreme Court
• Writing for the Court: MARBURY, Judge.
• Citation: Morgan v. Toot, 182 Md. 601, 35 A.2d 641 (Md. 1944)
• Decision Date: 02 February 1944
• Docket Number: 11.
• Parties: MORGAN et al. v. TOOT.

35 A.2d 641

182 Md. 601

MORGAN et al. v. TOOT.

No. 11.

Court of Appeals of Maryland

February 2, 1944

Appeals from Circuit Court, Harford County; Frederick Lee Cobourn Judge.

Consolidated attachment suits by Curtis Morgan, t/a Curtis Morgan Co. against James W. Toot, and by Grimes M. Holcomb, individually and t/a Garsin's Run Garage, against same defendant. From orders quashing the writ of attachment, the attaching creditors appeal.

Reversed and remanded.

J Wilmar Cronin, of Belair, for appellants.

G. Howlett Cobourn of Belair, for appellee.

Before SLOAN, C.J., and DELAPLAINE, COLLINS, MARBURY, MELVIN, and BAILEY, JJ.

MARBURY Judge.

The appellants, creditors of the appellee, each issued absconding debtor attachments in the Circuit Court for Harford County, and had attached a trailer alleged to belong to him. The first case, that of Curtis Morgan, was filed on April 28th, 1943 and the trailer was attached April 29th, 1943. The second case, that of Grimes M. Holcomb, was filed on May 7th, 1943 and the trailer was attached on May 8th, 1943. The cases were thereafter heard together. A claim of property on behalf of John Toot, brother of the appellee, was filed on May 28, 1943, and on the same day dismissed. On June 21, 1943 a claim of property on behalf of Paul C. Benner was filed. This was heard before the court without a jury on July 14th, 1943, testimony was taken, and a verdict found in favor of the appellants in each case, and judgments on these verdicts were made absolute on July 17th, 1943. On September 1st, 1943, after a motion for judgment of condemnation nisi had been filed, the appellee filed his motion to quash the attachments on the grounds that the trailer was not at the time of the attachment his property, that before and on the 29th day of April, 1943, it was the property of John Toot, and for further reasons to be shown at the hearing. On the same day the court heard this motion, and after testimony was taken, the attachment against the trailer was quashed. On the same day an appeal here was taken from that ruling. On September 13th, 1943 the court passed an order extending the time for filing bills of exceptions until thirty days from September 11th. On October 6th another order of court was filed extending the time for thirty days from that date. No further order was passed during the period of this last extension, but on November 8th, 1943 an order was passed extending the time for filing the bills of exceptions for ten days from November 6th. This order was filed with the notation that it was over the protest of counsel for the appellee. On November 12th the bill of exceptions was filed. The bill of exceptions shows that it was approved by the court on November 10th, and it also bears the signature of approval of the attorney for the appellee as well as of the attorney for the appellant. There is a stipulation of counsel filed which shows that the abstract of testimony was mailed to the appellee's counsel on October 21st, that the stenographer's transcript was received by counsel for appellee on October 25, that on October 29th the appellant's attorney inquired by letter if the abstract could be approved on November 1st. He received no reply, and after some futile telephoning by both counsel on November 5th, they finally reached each other late in the afternoon of that day, and the appellants' attorney was then advised that the bill of exceptions had been approved by appellee's attorney. He immediately mailed an order for a ten day extension to the court which was received and signed on November 6th. On November 8th a new term of court in Harford County began. On November 12th, as above stated, the bill of exceptions was filed with the clerk although it seems to have been approved on November 10th. Appellee made a motion here to dismiss the appeal because the bill of exceptions was not signed within the term of court at which the motion to quash was heard, nor signed within the time allowed by the order of court dated October 6th which time expired on November 5th.

There is in the record no rule of the Circuit Court for Harford County with respect to the time for filing bills of exceptions, and the appellant in his brief states that there is no such rule. Under these circumstances it is well settled that the bill of exceptions must be filed within the term, unless, within the term, the court extends the time. If the time is extended more than once, the order for each additional extension must be signed before the prior extension has expired. This has been frequently held by this court. One of the latest cases is Nicholson v. Walters, 153 Md. 16, 137 A. 357, where the court, speaking through Judge Urner, stated the rule and cited earlier cases.

However, bills of exceptions may be signed after the term has expired, if the parties consent, and this consent may be express or it may be inferred from the actions of the parties. They may be held to have waived any objection they had, or to be estopped by their conduct from making any. This was recently discussed in the case of Pennsylvania R. Co. v. Reeley, 179 Md. 35, at page 44, 16 A.2d 904, at page 908. In the case before us it appears that the appellee did object to the extension of time, although he had already approved the abstract. After that extension, the court signed the bill of exceptions without any objection so far as is shown by the record. On the contrary the written approval of the attorney for the appellee is attached to it. The appellee was not represented at the argument in this case and filed no brief, and in the absence of any explanation as to why he allowed his approval of the bill of exceptions to stand after the court had extended the time, and why he did not object to the signing of the bill of exceptions, we are of the opinion that he is now estopped from raising the objection by motion to dismiss in this court. The motion to dismiss, therefore, will be denied.

The court below, in his opinion, which appears in the record reached the conclusion that where the defendant filed a motion to quash for matters not apparent on the face of the record, such as whether title to the property attached was in someone other than the defendant, the burden of establishing the fact that the defendant owned the property rested upon the plaintiff in the attachment case. Following that view of the law the lower court further held that the question for decision before it was not who owned the property, but whether James W. Toot owned it. The record shows that James W. Toot did own it at one time, but he claimed that on April 22nd, 1943, he transferred it to his brother, John Toot, in Harrisburg, Pennsylvania, and then as salesman for his brother, he sold the trailer to Paul C. Benner, and received a check dated April 27th, 1943 for $1000 from Mr. Benner made payable to him, and that he deposited this check on April 28th, 1943, and got the money on it a day or two later. The court found that the title to the property was in someone other than the appellee, either John Toot or Benner, and therefore quashed the attachments.

The practice prior to the enactment in 1876 of what is now codified as Section 47 of Article 9 of the Code of Public General Laws was for a claimant to personal property to intervene by petition in the attachment case. He was then made a defendant. His case was tried with the attachment case, and it followed as a matter of course that the burden of proof was on the attaching creditor. Gilpin v. Somerville, 163 Md. 40, 161 A. 272. The old method, as was held in the last mentioned case, is still available, but a claimant has now the additional method provided by Article 9, Section 47. The advantages of this are discussed by Judge Stone, speaking for this court, in the early case of Kean v. Doerner, 62 Md. 475. If the newer and more speedy practice is adopted, then the claimant becomes the plaintiff, and when the case is heard, the burden of proof is on him, not to show that the property does not belong to the original defendant, which would be requiring proof of a negative, but to show affirmatively that the title to the property is in him, the claimant. Lemp Brewing Company v. Mantz, 120 Md. 176, 87 A. 814; Guyer v. Snyder, 133 Md. 19, 104 A. 116.

We have here, however, not a claimant's case at all, but a motion to quash made by the original defendant on the ground that the title to the property is in a specified person other than himself. This method of procedure to determine the title to property attached can be adopted either by the party who claims it or the defendant. Campbell v. Morris, 3 Har. & McH. 535; Howard v. Oppenheimer, 25 Md. 350; Neuman Company v. Duhadaway, 154 Md. 595, 141 A. 342. The question of the burden of proof on such a motion to quash has not been specifically before this court. It seems, however, that, as the whole case is not tried on the motion to quash, and as this is a summary method provided for an early disposition of this one point, the burden of proof should be on the party making the motion to show that the title is in the party in whom it is alleged to be. Here, just as in the claimant's proceeding provided by Section 47 of Article 9, a special remedy can be used in advance of the trial of the whole case. The burden should be on the party who prefers to use that remedy just as the burden is on him, if he chooses the other special remedy provided by Section 47.

In the case of Johnson v. Stockham, 89 Md. 368, 43 A. 943 945, attachments had been issued on the ground that the debtors were about to dispose of their property with intent to defraud their creditors. One of these attachments was in Baltimore City and the other in Harford County. The defendants moved to quash in Baltimore on...