Palmer v. Hughes
| Decision Date | 06 January 1897 |
| Parties | PALMER ET AL. v. HUGHES ET AL. |
| Court | Maryland Court of Appeals |
Appeal from circuit court, Howard county.
Attachment by Andrew J. Palmer and another against Robert H. Hughes and others. From an order quashing the attachment, plaintiffs appeal. Affirmed.
Argued before McSHERRY, C.J., and BRYAN, FOWLER, BRISCOE, PAGE ROBERTS, and BOYD, JJ.
G. W S. Musgrave and John G. Rogers, for appellants.
John E Dempster and Louis T. Clark, for appellees.
An attachment on original process for fraud was issued by the appellants against Robert H. Hughes on the 11th day of July 1895. On the 28th day of June of that year, Hughes had made a deed of trust for the benefit of his creditors to John E. Dempster and Louis T. Clark, but they did not file a bond, as required by the statute, to vest the title in them. The sheriff seized the stock of goods, wares, and merchandise of the defendant, who was a merchant, and also laid the attachment in the hands of Messrs. Dempster & Clark. The defendant made a motion to quash the attachment, and subsequently what is called in the record a supplemental motion to quash the attachment was filed by John E. Dempster, permanent trustee of the estate of Robert H. Hughes, insolvent. The principal reasons assigned in the motions, and urged before us, were: First, that Hughes did not assign, dispose of, or conceal his property, and was not about to do so, with intent to defraud his creditors; second, that he did not fraudulently contract the debt or incur the obligation for which said attachment was issued,--those being the grounds relied on for issuing the attachment.
The first question to be considered is whether the court below should have permitted the insolvent trustee to intervene in the attachment case, and make a motion to quash. It is contended by the appellants that the court, as a common-law court, no longer had jurisdiction, because Hughes had been declared insolvent. But the cases relied on do not sustain that contention. There are a number of decisions of this court to the effect that the assets of an insolvent must be distributed under the authority and direction of the insolvent court, where the rights of lien creditors, as well as others, will be protected; but that does not preclude the trustee from appearing in an attachment case to have it determined whether the attachment was properly issued. Sometimes the validity of a lien is necessarily involved in the proceeding instituted for the purpose of having the party adjudicated an insolvent, and it may often happen that there is no defense to the attachment which has been issued prior to the insolvency proceedings; but when the trustee has reason to believe that the attachment ought not to have been issued, or is fatally defective, it is not only his right, but would ordinarily be his duty, to appear in the attachment case, and seek to have it disposed of. The case of Collier v. Hanna, 71 Md. 253, 17 A. 1017, expressly recognized that right, and the case of Buschman v. Hanna, 72 Md. 1, 18 A. 962 (), refers to the fact that the trustee had intervened in the case in 71 Md. and 17 Atl., and made motions to quash the attachment. It does not intimate any doubt about the propriety of that proceeding, but, as the motions to quash were overruled, this court determined that the creditors could not proceed further against the property of the insolvent under the attachment, but their liens were not impaired, and could be asserted in the insolvent court.
Before determining whether the attachment was properly quashed, it will be necessary to dispose of a preliminary question, which affects some of the evidence in the record. Upon application of the permanent trustee, the hearing of the motion to quash was set for June 27, 1896, with leave to either side to take testimony before one of the standing examiners of the court. Some testimony was taken before one of them, but the evidence was not completed by June 27th; and the court, "in view of the incomplete state of the testimony, then ordered that the motion to quash be set for hearing on July 7, 1896, with leave to produce witnesses for oral examination in court." On the last-mentioned day, the case was taken up upon the written evidence already taken, and the oral examination of certain witnesses, which were produced before the court. The testimony taken orally is not brought before us by a bill of exceptions, but by a certificate of the judge "that, upon the foregoing evidence, the court sustained the motion to quash said attachment." When extrinsic evidence is introduced at the hearing of a motion to quash or to set aside process, and an appeal is taken to this court the facts must, of course, be presented in some properly authenticated form, so that we may know what proof was submitted to the court below. The best and most reliable method of thus presenting the evidence offered orally is by a bill of exceptions, and, if that practice be always pursued, it will oftentimes avoid technical difficulties, which may stand in the way of the appellate court's considering the evidence. It was held in Dumay v. Sanchez, 71 Md. 508, 18 A. 890, which was a motion to quash an attachment, that the facts in evidence below may be presented to this court by a bill of exceptions, by an agreed statement of facts, or by dispositions taken under authority of the court, properly authenticated, and filed in the cause. In Coulbourn v. Fleming, 78 Md. 210, 27 A. 1041, where there was a motion to strike out a judgment, there was a statement of evidence which, by a written agreement filed in the case, counsel admitted was given at the hearing of the motion, and the agreement was approved by the court as correct. The certificate of the judge in this case cannot, strictly speaking, be said to be a bill of exceptions, but it was intended as a substitute for one. Although we do not think this the best way to bring before us the testimony taken orally before the court below, we would not, in a motion of this kind, refuse to consider the facts contained in the certificate merely because they were presented in that way, and not by a bill of exceptions. But there is a serious difficulty in the way. The certificate was not signed by the judge until the 2d day of October, 1896, which was nearly two months after the attachment was quashed, and several weeks after the adjournment of the term at which the order appealed from was passed. It has been held in a number of cases that a bill of exceptions cannot be signed after the adjournment of the term, except by consent, unless the court has passed an...
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