Withers v. Denmead

22 Md. 135, 1864 Md. LEXIS 63

• Court: Court of Appeals of Maryland
• Decided: October 21, 1864
• Status: Published

Opinion

Bowie, C. J.,

delivered the opinion of this Court.

The object of the bill in this case, as indicated by the prayer for relief, is, that the appellee may be removed from the trust created by certain deeds referred to, and another appointed in his stead; that a contract between the appellants and appellee, for certain extra compensation be cancelled, and the appellee enjoined from selling or disposing of any portion of the reed estate conveyed to him by said deeds.

■The allegations of misconduct upon which this prayer is based, are not necessarily involved in the present consideration of this appeal. Suffice it to say they are broadly denied by the Answers, and not sustained by the evidence.

The appellee relies on the facts, that before the institution of this suit, he had given bond as required by law; duly reported his sales and other proceedings to the Circuit Court for Baltimore County, in which the complainant had appeared and filed exceptions, which after ^evidence taken and hearing of arguments, the Circuit Court had overruled, from which order overruling the exceptions the appellants had taken an appeal to the Court of Appeals, which appeal is still pending: wherefore, he submits, “how far this Court or the Circuit Court of Baltimore City ought to take jurisdiction in the premises, seeing thaf the subject of the execution of said trust is already before the Circuit Court for Baltimore County,” in the Equity proceedings therein above mentioned and exhibited.

The. answer of the appellee'being filed, an order was passed, on his motion to dissolve, setting down the motion for hearing on the 16th May 1862, with leave to the parties or either of them, to take testimony upon notice to the opposite party.

Afterwards, on the 16th June 1862, it was ordered and decreed by the Superior Court of Baltimore City, sitting as a Court of Equity, that the injunction heretofore granted in this case be dissolved, and that the hill of complaint be dismissed with costs, from which decree this appeal is taken.

The learned Judge helow, in his opinion preceding this order says: “In this case it is apparent from an authenticated copy of the record of the proceedings of the Circuit Court for Baltimore County, marked exhibit A. D., No. 1,. and filed in the cause as part of the answer of Adam Denmead, that at the time and before the institution of this suit, the Circuit Court for Baltimore County was in the full possession of the case, in reference to all matters connected with the execution of the trust, and the ability, integrity and fidelity of the trustee, and under such circumstances, the proposition that this Court cannot entertain the cause, and has no jurisdiction over the subject covered by the bill, is now too firmly established to be discussed:” — for which ho referred to Brooks vs. Delaplaine, 1 Md. Ch. Dec., 351. In that case Chancellor JOHNSON says: “There is no instance, as remarked by the late Chancellor, in Brown vs. Wallace, 1 G. & J., 497, in which either one of the English Courts has attempted to hinder, or stay any part of the proceedings, in a suit which had been rightly instituted, and was then progressing in another; nor has it ever been intimated, that either of these Courts could call before it the parties to a suit depending in the other, to give an account of acts done under the authority of the other. The rule established by that case, hoth by the reasoning and judgment of the Chancellor, and .by the Court of Appeals, is this: That when two Courts have concurrent jurisdiction over the same subject-matter, the Court in which the suit is first commenced, is entitled to retain it.”

It is contended on the part of the appellants, that the principles herein referred to, have no application to the case at bar; that the proceedings in the Circuit Court of Baltimore County, were under a special limited jurisdiction, for a single object, relating to the revenue, and as far as they exceeded that object, they were irregular and coram non. The character of a proceeding in equity is determined rather by the allegations, and relief prayed, than the title it assumes. Ridgely vs. Bond & Wife, 18 Md. Rep., 433.

The petition of Adam Denmead prays, “that the fund arising from said sales, and the future sales io be made, be appropriated and distributed among the parties entitled, under the direction of this Court, and that such other action may be had in the premises as the case may require.”

This proceeding tested by the standard above referred to, was not merely a compliance with the obligation imposed upon the trustee, by the bond executed by him, under sec. 116, of Art. 81 of the Code, but an application to the Court as a Court of Equity, to supervise and direct the execution of the trust. The absence of a prayer for subpoena was a material defect, which might haye been fatal, but for the subsequent voluntary appearance of the appellants. The appellants’ counsel admits, that “this intervention of the appellants in that cause, for the purpose of setting aside the sales, made a real case where none, existed previously, and the decision bound them upon the subject-matter of that contest.” It is true, the questions presented by the exceptions, related exclusively to the ratification of the sales then pending, but the prayer of the appellants’ bill embraced those sales, as well as future sales; it is: “that Adam Denmead be restrained from selling or disposing of any portion of the real estate, conveyed to him by said deeds,” that he be removed, etc. How could Adam Denmead comply with an order of the Circuit .Court for Baltimore County, directing him to convey the lands already sold, and the exceptions to which sales were overruled, if in the meantime the Superior Court of Baltimore City enjoined him from so doing? The danger of collision is so imminent, that public policy as well as judicial comity requires that the Court of co-ordinate jurisdiction, first in possession of any portion of the subject-matter, should not be disturbed by any other Court.

It is contended further, that the question of jurisdiction can be raised only by plea, for which the appellants .refer to 2 Paul. Ch. Pr., 717. Story’s Eq. PI., secs, 10 and 11, and early Maryland cases. ' However the practice may have been formerly, it is clear from tlie cases of Brooks vs. Delaplaine, 1 Md. Ch. Dec., 351; Dunnock vs. Dunnock, 3 Md. Ch. Dec., 141, and Albert & Wife vs. Winn & Ross, 7 Gill, 446,—that such defences may be taken by answer; and as soon as the Court is judicially informed of the prior suit, it will dismiss the subsequent proceedings.

(Decided October 21st 1864.)

The objection that it was error in the Court below, to dismiss upon a motion to dissolve, is made without weighing the legal effect of a plea to the jurisdiction. Such a plea at law or in equity, if found for the defendant, would arrest all other proceedings; and although the general rule in Chancery is, upon motions to dissolve, to go no further than to dissolve or continue the injunction until final hearing, such rule must be subject to the exception of objections to the jurisdiction, which being established, at once terminate the proceedings in which they are relied on, whether by plea or answer; otherwise, we should have the anomaly of a Court entertaining a cause after it.had been declared it had no authority to do so. The decree or order of the Court, dissolving the injunction and dismissing the bill, will be affirmed, with costs to the appellee.

Decree affirmed.