Nusbaum v. Stein

• Decision Date: 20 July 1858
• Citation: 12 Md. 315
• Parties: JOSEPH NUSBAUM and JOHN BOWES, v. MYER STEIN, and others.
• Court: Maryland Court of Appeals

12 Md. 315

JOSEPH NUSBAUM and JOHN BOWES, v. MYER STEIN, and others.

Court of Appeals of Maryland.

Jul. 20, 1858

Granting an injunction is a matter resting in the sound discretion of a court of equity, and such a power should be exercised with extreme caution, and to warrant its action strong prima facie evidence of the facts on which the complainant's equity rests, must be presented to the court.

Where the claim is on a written instrument in the complainant's possession, it should be exhibited with the bill, or a satisfactory reason assigned for its non-production, and a bill stating the complainant's claim to be founded on promissory notes, none of which are exhibited, and no reason or excuse given therefor, will not warrant the granting of an injunction, though the bill be sworn to.

Where the only claim on which the complainant can ask for an injunction, is a small sum on open account, of which no account is produced verified by affidavit, and the allegations of the bill show the defendant to be possessed of a large sum over and above the mortgages and conveyances attacked by the bill, a preliminary injunction should not be granted to affect the property embraced in such conveyances.

A receiver ought not to be appointed without previous notice of the application given to the defendant, unless the necessity be of the most stringent character.

APPEAL from the Circuit Court for Baltimore city.

This appeal was taken by the appellants, after answers filed, from an order of the court below (KREBS, J.,) granting an injunction and appointing a receiver, upon a bill filed against them by the appellees. The allegations of the bill are fully stated in the opinion of this court.

The cause was argued before LE GRAND, C. J., ECCLESTON and BARTOL, J.

F W. Brune for the appellants:

1st. The complainants were not entitled to the appointment of a receiver nor to an injunction, because they are merely general creditors of Nusbaum, and have not prosecuted their claim to judgment and execution, nor in any other manner acquired a lien upon the appellants' property. 10 Md Rep., 500, Uhl vs. Dillon. 11 Md. Rep., 365, Blondheim vs. Moore. Ibid., 452, Triebert vs. Burgess. 2 Johns. Ch. Rep., 144, Wiggins vs. Armstrong.

2nd. The bill of sale from Nusbaum to Bowes, was executed by the former, and was acknowledged and recorded according to law, and the consideration was sworn to by the latter. Being thus executed and sustained by affidavit, it furnishes at least prima facie evidence that the consideration was just and bona fide, as stated in it. In opposition to this, the complainants furnished no proof whatever, except the oath ex-parte of Stein, one of the complainants, which does not positively state the facts sworn to, but only to the best of his knowledge and belief. Such an affidavit, unsupported by any other evidence, is wholly insufficient to counteract the positive statement made in the bill of sale, and the order of the court was, therefore, passed on proof entirely insufficient. Almost the entire claim of the complainants is founded upon promissory notes, none of which are produced, and no excuse given for their non-production; and as to the small balance on open account, even that is unsupported by any affidavit or other proof. That the court, upon such proof, ought not to have granted the injunction, is fully sustained by the case of The Union Bank vs. Poultney, 8 G. & J., 332. That the allegations of the bill do not make a case authorizing an injunction, and, above all, the appointment of a receiver, see Adams Eq., 487, (n; ) 1 Paige, 98, New York Printing Co. vs. Fitch; 9 G. & J., 468, Amelung vs. Seekamp; 4 Gill, 34, Hamilton vs. Ely; 1 Md. Rep., 543, White vs. Flannigain; 2 Green's Ch. Rep., 422, Vanwinkle vs. Curtis; 1 Clarke, 336, Rochester vs. Curtiss.

3rd. An additional objection to the exercise of the power exerted by the court in this case, in granting an injunction and appointing a receiver, arises from the fact that the stock of goods thus summarily taken possession of, was in Easton, and the business enjoined there carried on out of the jurisdiction of the court. 5 Sandf., 613, Grant vs. Quick.

Orville Horwitz and Chas. H. Pitts for the appellees:

1st. Under the act of 1835, ch. 380, sec. 2, as construed in the case of Sanderson vs. Stockdale, 11 Md. Rep., 563, it was not necessary for the complainants to have prosecuted their claim to judgment, or to have acquired any lien on the property before proceeding in equity to vacate these conveyances.

2nd. The allegations of the bill make a sufficient case for the interference of the court, by way of injunction and a receiver. It alleges that Bowes was not possessed of any property or means at the time these conveyances were executed; that no consideration was given therefor; and that the deeds were made by the one and accepted by the other without consideration, and with the intent to defraud creditors; that, in effect, there was a conspiracy to defraud. These allegations need no other proof than the sufficient oath of the complainants, and, according to the case of Triebert vs. Burgess, 11 Md. Rep., 452, such an affidavit as that in this case, " that the facts stated in the bill are true, according to the best of complainant's knowledge and belief, " was held sufficient. There was also sufficient proof of the existence of the claim. But even if the non-production of the notes is an objection, still the bill alleges a portion of the debt to be due upon open account, and this was sufficient to warrant the action of the court, for if any part of the claim authorized the court to issue the order, the fact that there was another part secured by notes, could not deprive the complainants of the rights they had, under the allegation, for the open account debt. The court, then, having the right to interfere for the complainants' protection, how could it be done except by an injunction and a receiver? The goods were distant, and the defendants had no other means to pay our claim, and were about to dispose of the property. This is the very case contemplated in the decision in Triebert vs. Burgess.

3rd. The fact that the goods were at Easton, can make no difference. The case cited from 5 Sandford, only says you cannot interfere to stop the action of another court; but here there was no other proceeding at Easton with which this could interfere.

OPINION

ECCLESTON, J.

The bill in this case was filed in the circuit court for the city of Baltimore, on the 15th of December 1857, by Myer Stein and others, complainants, against Joseph Nusbaum and John Bowes, defendants; upon which day the court ordered an injunction and appointed a receiver. From this order, after filing their answers, the defendants appealed.

It is well settled, " that the granting or refusing of injunctions is a matter resting in the sound discretion of a court of equity." 2 Story's Eq., secs. 863, 959, (a.) This learned author, in sec. 959 (b,) maintains the necessity for upholding the authority of the courts to grant injunctions in a variety of cases, for the purposes of social justice. But he then says: " At the same time, it must be admitted that the exercise of it is attended with no small danger, both from its summary nature and its liability to abuse. It ought, therefore, to be guarded with extreme caution, and applied only in very clear cases; otherwise, instead of becoming an instrument to promote the public as well as private welfare, it may become a means of extensive, and, perhaps, of irreparable injustice." See the authorities referred to in the note to this section, including a quotation from Mr. Justice Baldwin's decision, in Bonaparte vs. Camden & Amboy Rail Road Co., in which he says: " There is no power, the...