Title Guarantee & Trust Co. v. McCulloh

• Decision Date: 01 April 1908
• Citation: Title Guarantee & Trust Co. v. McCulloh, 108 Md. 48, 69 A. 434 (Md. 1908)
• Parties: TITLE GUARANTEE & TRUST CO. v. McCULLOH et al.
• Court: Maryland Supreme Court

69 A. 434

108 Md. 48

TITLE GUARANTEE & TRUST CO. v. McCULLOH et al.

Court of Appeals of Maryland

April 1, 1908

Appeal from Circuit Court No. 2 of Baltimore City; James P. Gorten Judge.

Suit by Charles B. Burdette, assignee of Harry C. Barnes, against the Independent Methodist Church of the Nazarene, of Baltimore City, to enforce a mechanic's lien, in which R. N McCulloh and another, copartners, and another filed claims. From orders as to distribution of the proceeds of sale, the Title Guarantee & Trust Company, a mortgagee, appeals. Affirmed.

Henry C. Kennard and Joseph P. Merryman, for appellant.

Arthur Herzog and Allan Cleveland, for appellees.

BOYD C.J.

This is an appeal by the Title Guarantee & Trust Company from an order dismissing the exceptions of that company to an audit designated "Account A," and sustaining the exceptions of the appellees to what is known as "Account B." In Account A the auditor allowed the mechanic's lien claims of Clarence E. Jones and R. N. McCulloh, trading as R. N. McCulloh & Co., respectively, while in Account B which was stated at the instance of the appellant, he disallowed both of those claims, and distributed the fund to the appellant, mortgagee. The solicitors for the appellant very ably presented a number of interesting points concerning the validity, vel non, of those lien claims, but at the threshold of the case we are met with a question, which in our judgment, must dispose of the appeal--that the claims of both of the appellees were finally adjudicated by the decision of this court in Title Co. v. Burdette, 104 Md. 666, 65 A. 341.

Harry C. Barnes filed a bill in equity against the Independent Methodist Church of the Nazarene, of Baltimore City, to enforce a mechanic's lien for work done by him on the church. It was filed on his behalf, "and also for such other persons interested herein who may contribute thereto." An answer was filed admitting all the facts and consenting to a decree, and the same day a decree was passed. Shortly afterwards Barnes assigned his claim to Charles B. Burdette. After some proceedings by the present appellant, a co-trustee was appointed with Mr. Merryman, who was the original trustee named in the decree. The property was sold, and the sale ratified. Upon application of the trustees an order was passed directing them to give notice to all persons having claims against the church to file them, properly authenticated, with the clerk of circuit court No. 2 of Baltimore city on or before May 5, 1906. On petition of the plaintiff an order was passed allowing Mr. Merryman a fee of $250, subject to the usual exceptions, on the theory, as stated in the petition, that the bill was filed on behalf of the plaintiff and other creditors. On April 28th an account was stated allowing the trustee's commissions, costs, and expenditures, and the fee of Mr. Merryman, reserving the balance of the proceeds of sale for distribution. That audit was ratified on May 12th, except as to the allowance of the fee, which was not then acted on. On May 3d these appellees filed a petition alleging that they were the only mechanics' lienors, and as such were preferred creditors of the church, at the same time denying and excepting to any lien claim that Barnes claimed to have and asking to be made parties defendants, which was done by an order of the court of the same date. They filed with their petition certified copies of their respective lien claims. This appellant filed exceptions to the allowance of Mr. Merryman's fee, and also a statement of its mortgage claim. Another audit was filed which, after allowing certain additional costs, distributed the funds to the claims of Jones, McCulloh, and Burdette, assignee of Barnes, in full, with interest, and the remainder to the appellant--the latter only getting $400.88 out of a claim of $2,322. The appellant filed exceptions to the claims of Burdette, assignee, Jones, and McCulloh, assigning as reasons therefor, "first, that the said lien claim is invalid in law and of no effect or force; second, for other reasons to be assigned at the hearing of these exceptions." Separate exceptions were filed against each of those three claims, but the reasons given in each were stated in the language above quoted.

On the same day Burdette, assignee of Barnes, filed a motion to dismiss the exceptions to the last audit for the reason "first, because the validity of said claim has already been finally adjudicated in this cause; second, that said exceptant is estopped from raising the said objection to said claim"; and on the next day he made a motion to have "the cause placed on the trial calendar for hearing on exceptions to auditor's distribution account in conformity with the first equity rule." On June 11th McCulloh and Jones each filed a petition to dismiss the exceptions to the allowance to their claims. On that day the court passed an order overruling and dismissing the exceptions of the appellant to auditor's account No. 1 (which allowed the fee of Mr. Merryman), ratified that account, and also granted a motion of Burdette, assignee, to dismiss the exceptions of the appellant to his claim in auditor's...