Thruston v. Devecmon

• Decision Date: 19 February 1869
• Citation: 30 Md. 210
• Parties: GEORGE A. THRUSTON v. WILLIAM DEVECMON.
• Court: Maryland Court of Appeals

30 Md. 210

GEORGE A. THRUSTON v. WILLIAM DEVECMON.

Court of Appeals of Maryland

February 19, 1869

APPEAL from the Circuit Court for Allegany County, sitting in Equity.

This appeal was taken from the decision of the Circuit Court sitting as a Court of Equity, on two petitions; the first filed by the appellee on September 1st, 1866, in a cause then depending in said Court, (wherein George F. Gephart and others were complainants, and John C. Stoven and others defendants,) against George A. Pearre, Charles B. Thruston and James M. Schley, (co-trustees with the appellant,) and the appellant, stating that said trustees had sold the property decreed to be sold in the cause, and reported the same, &c. that an audit had been made, distributing the proceeds to creditors, &c., in which the sum of $2,092.19 was allowed to the petitioner; that said audit had been finally ratified and confirmed on the 7th day of July, 1866, (it was filed on the 9th of the same month.)

The petition also stated that after the ratification of the audit, the appellee demanded from the trustees, payment of such sum, for which three signed a check payable to his order, but the appellant refused to do so; that the money was deposited in bank to the credit of the four trustees, and the bank refused to cash or pay the check unless signed by the appellant also; that the appellant wholly refused to sign it that petitioner was remediless, except by the authority of the Court, in Equity; that he had offered an indemnity bond to the trustees for double the amount so distributed, if they would pay the same; that the audit and its ratification gave him a right to recover the money from said trustee.The petition then prayed for an order to compel the trustees to show cause, and answer under oath, on some day to be fixed by the Court, why they would not pay the sum audited as aforesaid, and to compel them to pay all sums distributed to him by said audit, &c.

On the 5th of September, 1866, an order was passed on this petition requiring the trustees to show cause on oath, on or before October 1st, 1866, why they would not pay the money distributed by said audit to the petitioner, as appears in the auditor's first report, ratified on the 7th day of July, 1866, referred to in said petition, and to bring into Court the said money, bonds, &c., received as purchase money &c., to be disposed of under its orders.

The appellant alone on the 15th of October, 1866, answered this petition; in his answer he set forth two grounds of defence for having refused payment of the sum audited to the appellee: First, that the same was entered "to the use of the appellee" whilst the auditor was preparing his report, and after it had so far progressed as to have been previously audited to the Allegany County Bank alone "the use" being interlined in the audit, upon the simple order of the appellee as attorney for himself, without any knowledge whatever of the appellant that such audit was so being made, or was to be, or was so made; and second, that prior liens of attaching creditors of the Allegany County Bank, had so affected the fund when the audit was ratified, as to prevent its application to any other claims than the liens referred to.The levy under these attachments was laid in the hands of the appellant, and Thomas Devecmon, trustees.

The second petition filed on the 18th of October, 1866, by the attaching creditors of the Allegany County Bank, including the appellant in his capacity as administrator, set forth the laying of the writs of attachment in the hands of the appellant and Thomas Devecmon, trustees, (the latter having since deceased, about October 21st, 1864,) on the chattels, rights, credits, &c., of the bank, that said garnishees were duly notified to appear and answer, &c. that said suits were still pending and unanswered by the appellant, one of the trustees in this cause, that they were advised and charged that said suits so levied, &c., would seize and take all credits and property of said bank, viz: $2,092.19, and subsequent distribution, when distributed, due by said trustees to said bank, and that by the levy laid in the hands of the appellant, trustee, with notice of the same to his co-trustees in this cause, that the fund still remained in bank to the credit of the four trustees and under the control of the Court, and liable to said creditors according to their several priorities, &c. that until said audit was finally ratified, they could not expect the same to be answered by the garnishee, so as to obtain these judgments, &c. and stated further the steps which they were advised were necessary to enable them to enforce said attachments, &c.

The petition then stated that the said $2,092.19 belonged wholly to the bank and not to the appellee; and that there was no evidence in the cause, and none was produced before the auditor, authorizing him to audit the claims of said bank to the use of the appellee; that there had not been, since the claim of the bank itself was filed in the cause, and said suits were instituted, any agent or officer of the bank who could assign or control or dispose of said claim for the bank, or who could do anything with said claim whatever; that the appellee did not own it, and could not acquire it; and that the order to enter the same to his use, by his own authority only, was of no avail whatever for such purpose.

The petition then prayed the Court to order said words to be stricken from the audit, or the audit to be remanded for that purpose, so that the trustees might pay the same to the bank or its creditors with safety, so that such and all future sums distributed to the bank on its said claims might be paid and audited to the bank or its attaching creditors, and for further relief; and for an order requiring the appellee(not upon oath) to answer and show cause, &c.An order was passed accordingly requiring the appellee to answer and show cause, &c.

The answer of the appellee, under oath, filed on the 10th of December, 1866, denied the jurisdiction of the Court to grant any relief to the petitioners, because they were not parties to the suit, and had no standing in Court.And further, because first, by the audit so finally ratified, nothing appeared due from the trustees to the bank, in whose right and as whose creditors the petitioners claimed the sum aforesaid; but the same was by the order ratifying the auditor's report, adjudged and ordered to be paid by the trustees to the respondent; that the order finally ratifying the report was passed during a term of the Court which had expired, and could not be enquired into.

Second.Because the petitioners' suits were defective and illegal, and they had a full and adequate remedy at law.

Third.Because the attachment writs were not laid in the hands of the trustees, nor were they warned and summoned by the Sheriff to show cause, &c., why said fund in their hands should not be condemned, &c., and if the same had been distributed to the bank, and no sum was so audited and distributed to the bank, the petitioners could not have acquired by their writs of attachment any lien upon said sum or any sum in the hands of the said trustees.

The appellee further answered; but the same, for the purposes of this cause, need not be repeated.He insisted that the petition should be dismissed, &c.The matter of the two petitions, answers and testimony, having been set down for hearing, the Court(R. JOHNSON, JR., Special Judge,) on the 27th of February, 1866, passed an order dismissing the petition of the attaching creditors of the bank, and requiring the trustees to pay to the appellee the sum of $2,092.19 as claimed by him.From this order the present appeal was taken.

The cause was argued before BARTOL, C.J., BRENT, GRASON, MILLER, ALVEY and ROBINSON, J.

George A. Thruston, for the appellant:

The order of final ratification of the auditor's report was passed on the 7th of July, 1866, but was not filed until the 9th of the same month, being the day of commencement of the July Term of that year.The question for determination by the Court is, was the audit filed at a term of the Court which had finally closed, because the attaching creditors of Allegany County Bank did not file their petition in said cause until the 18th of October, 1866?Code of Public Local Laws, Art. 1, sec. 10.

But even if the term had passed, so long as the fund or any part of it remained in Court, (and particularly in a case like the present,) it was not too late...