Voshell v. Hynson

• Decision Date: 11 December 1866
• Citation: 26 Md. 83
• Parties: JOHN C. VOSHELL and Gideon Heaton v. BENJAMIN T. HYNSON, William G. Hynson and Jacob Gross.
• Court: Maryland Court of Appeals

26 Md. 83

JOHN C. VOSHELL and Gideon Heaton v. BENJAMIN T. HYNSON, William G. Hynson and Jacob Gross.

Court of Appeals of Maryland

December 11, 1866

Where defendant failed to appeal from an order appointing a receiver, on the ground that he was not heard thereon, he cannot raise the objection on appeal from a refusal to discharge the receiver, after answer made and testimony taken.

Appeal from the Circuit Court for Baltimore City:

This appeal is taken from two orders of the court below (Alexander, J.), the one passed on the 24th of February 1866, appointing receivers and granting an injunction, and the other, dated 30th of April, 1866, continuing said order of 24th of February, 1866, until final hearing or further order.

The bill in this case, filed 24th of February, 1866, states that Benjamin T. Hynson and William G. Hynson, trading as B. T Hynson & Son, on the 20th of December, 1865, obtained a judgment in the Court of Common Pleas of Baltimore City against said John C. Voshell for the sum of $461.94 and costs; and that said Jacob Gross, on the 30th day of December, 1865, also obtained judgment in said Court of Common Pleas against said John C. Voshell for $228.31 and costs, and that both of said judgments are due and unpaid. That on the 31st of January, 1866, the said B. T. Hynson & Son and Jacob Gross caused writs of fieri facias to be issued on said judgments, which were levied on the goods and chattels of said John C. Voshell, contained in the "Voshell House," conducted by said Voshell situated in the City of Baltimore. The bill further charges that said Heaton, by virtue of a mortgage executed to him by said Voshell, dated the 31st of December, 1864, "claimed to prevent the execution and sale by the Sheriff of the goods and chattels of the said Voshell, so levied upon as aforesaid, to satisfy said judgments;" and the special return of the Sheriff of said writs of fieri facias, and an inventory and appraisement of said goods and chattels, were filed with said bill. The bill further alleges, that said Voshell had no other property out of which said judgments could be satisfied, and that "since the execution of said mortgage to said Heaton, the said Voshell had been permitted to use and dispose of the goods and chattels, mentioned in the said mortgage, and that the said Voshell was then in the possession and use of said goods and chattels," and was then "disposing of them or part of them," and "that a part of the goods and chattels levied on by said Sheriff, under the executions aforesaid, are not the same goods and chattels as those mentioned in said mortgage, but are others and different," and that the complainants were "unable to distinguish the one from the other."

The bill further states, "that if the goods and chattels levied upon as aforesaid, be not taken from the possession of said Voshell, that they will be disposed of," and that the complainants "will be subjected to an entire loss of their claim," and that they are without remedy at law. The bill then prays "that a receiver may be appointed to take charge of the goods and chattels levied upon as aforesaid, and to preserve or dispose of the same," under the direction of the court, and that said John C. Voshell may, by injunction, be restrained from "selling or disposing of or retaining from the receiver any of the goods and chattels levied upon as aforesaid, or intermeddling with them; and that said goods and chattels may be sold, and the proceeds applied to the payment of the claims of the complainants after paying any prior claims against the same," and for further relief.

On this bill (which was sworn to by said William G. Hynson,) the court immediately granted the injunction, and without notice to the defendants, or rule to show cause, appointed receivers. Whereupon the receivers so appointed, at once, before filing the bonds required by the order of court, commenced to act in the premises, and addressed a note to said Voshell threatening to sell the property in the Voshell House, on the following day, ""Monday next," being the 26th of February; the note is dated 24th of February, 1866.

On the 27th day of February, 1866, the said John C. Voshell and Gideon Heaton, the only parties who were made defendants, filed their answer to said bill.

The answer admits that said judgments were due and owing by said John C. Voshell to the complainants. It then alleges that said John C. Voshell, being indebted unto the said Gideon Heaton in the sum of $1,687.25, passed his promissory note therefor to the said Heaton, dated 31st of December, 1864, and payable one year thereafter, with interest until paid, and to secure the payment thereof had executed a mortgage of same date to said Heaton. And that no part of said note, or the interest due thereon had been paid, making the amount then due said Heaton by said John C. Voshell, on said mortgage, ($1,804.22) eighteen hundred and four dollars and twenty-two cents. The answer further alleges, that all the goods belonging to said John C. Voshell, and covered by said mortgage, would not sell for sufficient even to pay said note, without the interest due thereon, and that a sale thereof by a receiver, would be attended by a heavy loss to said Heaton. It further shows that the bulk of the goods and chattels so levied upon by the Sheriff do not belong to said John C. Voshell, of which fact the Sheriff had notice at the time that he made the levy; and, again, before he made his return. The answer further specifies to whom the principal part of the furniture so levied upon belongs. It then denies all the material allegations in the bill, more especially that the complainants could not distinguish the goods named in the mortgage from those that were levied upon as aforesaid, but not named therein, and shows that the complainants purposely made no effort whatever to distinguish the one from the other, with the view and design of making it appear to the court that the property mortgaged was of larger value than the mortgage claim. And there is nothing in the testimony to show that the complainants ever made the slightest attempt to so distinguish the property in question.

And the answer denies that said John C. Voshell had been "permitted to dispose of the goods and chattels mentioned in the said mortgage, and that he was then disposing of them or part of them," and it avers that the party (William G. Hynson) who made the affidavit attached to the bill, had no knowledge whatever upon which he based such charge, but that he did so with the hope that the complainants might thereby obtain an injunction, and have a receiver appointed, that, in that way, and under the threat of selling all the furniture in the Voshell House, the said B. T. Hynson & Son might extort the amount of their said judgment.

The answer further insists, that if it could be shown that there was other property in the Voshell House belonging to said John C. Voshell and not covered by said mortgage, that then the complainants had an ample remedy at law, and that the court below would have no jurisdiction in the premises.

It further shows that there was due and owing to the landlord of the Voshell House for rent thereof, at the time said order of 24th of February, 1866, was passed, granting an injunction and appointing receivers, the sum of $1,200, for which he had caused a distress to be levied. The answer was sworn to by both the defendants.

After this answer was filed, viz: on the 2nd of March, 1866, a commission was issued to take testimony, and on the 12th of March, 1866, the complainants filed a general replication. On the 15th of the same month the defendants filed a motion to rescind the order appointing receivers and to dissolve the injunction.

Under the commission, testimony was taken by both sides. To a large part of the complainants' testimony the defendants excepted, on the ground that the same were not applicable to any fact put in issue by the bill. The case was finally set down for argument, and on the 30th of April, 1866, the court, (Alexander, J.,) filed an opinion and passed an order continuing the injunction and receivers until "final hearing or further order," from which order, and from that of 24th of February, 1866, this appeal was taken.

The cause was argued before BOWIE, C.J., and BARTOL, GOLDSBOROUGH, COCHRAN and WEISEL, JJ.

T. B. Horwitz, for the appellants, argued:

1st. The complainants were not entitled to a receiver nor to an injunction, because "fraud and imminent danger" were not "clearly proved" before the order in this case for an injunction and receivers was passed. Thompson v. Diffenderffer, 1 Md. Ch. 495. Furlong v. Edwards, 3 Md. 112. Blondheim v. Moore, 11 Md. 374, 375. But so far from fraud in this case being clearly proved, it is not even alleged in the bill, and there was certainly no proof of imminent danger.

2nd. The defendants were entitled to notice before said order was passed. Blondheim v. Moore, 11 Md. 374, 375. Trieber v. Burgess, 11 Md. 461. Nusbaum v. Stein, 12 Md. 322.

The defendants resided within a very short distance of the court, and could, without loss of time, have been notified of the complainants' application for an injunction and to have a receiver appointed, and for that reason, also, were entitled to notice. Trieber v. Burgess, 11 Md. 461.

Not only were the receivers appointed on the same day that the bill was filed in this case, without previous notice to the defendants, but they actually proceeded to act as receivers before they had even filed the bond required by the order appointing them receivers.

3rd. All the material allegations in the bill are denied by the answer, and the answer is evidence for the defendants; Hubbard v. Mobray, 20 Md. 167; and the allegations being...