Zimmerman v. Garfinkel

124 A. 919, 144 Md. 394, 1924 Md. LEXIS 10

• Court: Court of Appeals of Maryland
• Decided: January 9, 1924
• Status: Published

Opinion

Boyd, C. J.,

delivered the opinion of the Conrt.

Joseph Garfinkel sued Benjamin Zimmerman under the Speedy Judgment Act for Baltimore City on March 7th, 1923, and in the declaration stated, “and this suit is brought with claim for mandamus and injunction, for which petition is herewith separately filed.” The declaration contains six common counts. The record is not entirely clear as to what papers were intended as the cause of action, but there is annexed to the declaration .an account, dated March 7th, 1923, of Benjamin Zimmerman to Joseph Garfinkel, Dr. which is as follows:

“Under adjustments attached, in pursuance of agreement of purchase in sale-in-bulk of grocery store, good will, etc., attached of January 25, 1923 :

“1923, Feb. 5 — To agreed balance of purchase pi’ice of 1173 Washington Boulevard for payment of creditors to plaintiff withheld by purchaser to be paid before Feb. 24, 1923, as per adjustment.......................•.... $787.10

“1923, Feb. 26 — By payment by Zimmerman on OK’s of G-arfinkel in reduction of creditors in amount of.........................$787.10

“As per advices to A. O. Binswanger....... 391.56

“Balance of purchase price due.........$359.52”

There then follows in the record another account showing the whole purchase price to be $1,800' and from that are deducted a number of credits as of January 26th and February 5th, 1923, leaving a balance of $787.10 as amount withheld by Zimmerman as stated above. Then there are some creditors named with amounts opposite their names, amounting in all to $243.55, which is one of the credits of February 5th referred to above. This last account is marked, “Approved and ratified” and signed by the vendor and purchaser-. Following that in the record is an agreement between the purchaser and vendor dated February 5th, 1923, which we will not copy. After that, there appears in the record, dated January 25th, 1923, an offer by Zimmerman, addressed to Garfinkel, of $1,800 for the assets, stock in trade, fixtures and good will of his grocery and general store, which recites the terms, and Joseph Garfinkel acknowledges receipt of the sum of $250 “to bind the aforesaid bargain of sale and purchase” and accepts the offer on the terms named, adding, “and the above, which is in duplicate, shall constitute the contract between us.” After the above there appears a paper which covers, including the order of court, ten printed pages- of the record, marked “Separate petition for claim for mandamus and injunction,” etc., filed March 7th, 1923. There then follow in the record exhibits Ha 1 to Ho-. 7, inclusive, to the petition for mandamus, injunction and appointment of trusr tee.

We understand from the record that the papers referred to above¡, prior to the petition, were intended as the canse of action on which s-uit was brought. We will consider that suit in connection with the statute on sales in bulk, now to be found in sections 100-103 of article 83 of the Code, vol. 3. Later we will consider the statute authorizing a claim for mandamus or a claim, for injunction, or both, which is now embraced in sections 125-137 of article 75 of the Code.

First: As indicated above, this suit was primarily brought to recover a balance alleged to be due for a sale in bulk of the stock in trade-, etc., in a grocery store. We do not want to be understood by anything we sa,y, or leave unsaid, as determining that we consider it a valid sale in bulk under our statute. It is not necessary to determine that, hut at least $250 was paid, the same day or the day after the -contract was made, on the purchase price, and, without referring to other payments, it is sufficient to say that the $250 was paid before the statement under oath required by section 100 was demanded and received from the vendor, and before the purchaser had notified or caused to be notified personally or by registered letter each of the creditors of the vendor of the proposed purchase by him of the stock of goods, wares, etc., although the statute prohibits the payment of tine purchase price or any part- thereof by the purchaser without having first- demanded and received from, his vendor the statement under oath, or without having notified all -of the creditors of the vendor as therein stated. The statute provides that if those things be not done, such purchase and sale or transfer shall “as to- any and all subsisting creditors of the vendors he void” (section 101). But inasmuch as. there are no creditors, complaining before us, and apparently the vendor and purchaser seem to have entered into' some contract, "between themselves, we do not deem it necessary or desirable to say more on that subject, as the statute does not make the sale void as between the parties, or as. affecting any persons other than the subsisting creditors.

Second: This brings us to the claim for mandamus and injunction. Section 125 of article 75 provides that:

“The plaintiff in any action at law (except ejectment and replevin) upon the bringing of the same may, in his order to the clerk to issue in the case, if by titling, or in his order to issue, if endorsed on the declaration, direct that the writ of summons shall be 'with claim for mandamus’ or 'with claim for injunction,’ (or either or both of them as the case may be), or words to the like effect.”

Section 126 provides that:

“Upon complying with the provisions of the foregoing section the plaintiff may thereupon claim in his declaration, either together with any other demand which may be enforced in such action, or separately, a writ of mandamus, * * * or’ an injunction,” etc.

Section 127 is:

“The declaration in such action shall set forth sufficient grounds upon which the claim for mandamus or injunction is founded, and that plaintiff is interested therein,” etc.

It i® clear that, conceding the right to ask for a mandamus or injunction in a separate paper, and not necessarily in the declaration itself, when that is done, such paper, whatever it may be called, must be so connected with it by appropriate reference, or in some way, as to malee it part of the declaration, and if it is not a paper with which that can properly be done it is not one within the statute. What we have already quoted from sections 126 and 127, supra,, and section 128, which provides that,

“The defendant may demur to so much of the plaintiff’s declaration as claims such writ, and such demurrer shall raise the question whether the facts stated as the ground of such claim disclose any such legal duty as that so sought to he enforced.”

are sufficient to show1 that if the claim for mandamus or injunction is not written out in the declaration it must clearly be made a part of it.

Just what the petition filed in this case can properly be called, we need not, determine, but the plaintiff uses terms in it which are generally to be found in a bill in equity and not elsewhere. For example, it begins: “Your orator, complaining, says.” Then throughout it uses; the term “complainant” and “orator.” It says: “Your complainant is advised and therefore charges that he is entitled to equitable relief to rer quire the respondent to specifically refrain,” etc., and in the prayers it asks for .a mandamus to require the defendant to bring into court on or before a certain day to be named therein, the sum of $300, “to be paid to your orator for the purpose of having your orator liquidate indebtedness, incurred by your orator with creditors as set forth in the bill of complaint,” contains a prayer for general relief and other’ things which suggest a bill in equity and not such a paper as this statute evidently contemplates.

But we do not rely on the mere form of the petition to show that action under it was not authorized as the petition prays for, and the order of the lower court directed certain things which seem to us to be clearly beyond the intention of the Legislature in passing’ that statute. The only case involving this statute which has readied this Court is that of the Chesapeake & P. Tel Co. v. Mackenzie, 74 Md. 36, although it has sometimes been invoked in the circuit court with which the writer of this opinion is connected, and probably in some other circuits. In that case, Jüugjí McSuerry said that the demurrer referred to in section 119 (now 128) of article 75 was a special demurrer, and that the question could not be raised by a. general demurrer. Mr. Poe, in volume 1 of his work on Pleading and Practice, sections 588A and 747A, took the position that the Court, in reaching that conclusion, obviously meant no more than to1 declare that the demurrer must be special in the sense that it must set up particularly the ground upon which the facts disclosed in the declaration are claimed to' be insufficient, and we are satisfied to adopt that view. Of course, the appellant could not make the demurrer filed in this ease a special one by saying, as he does, that the defendant specially demurs to the petition. That is not only not a special demurrer, but it cannot be said to point out specially the ground of objection, unless it be on the question of jurisdiction. Put the petition of Benjamin Zimmerman, filed March 20th, 1923, did move and pray the lower court to rescind and strike out the orders of March 6th, 1923, and March 15th, 1923, and the action of the court thereon can be properly considered by us, regardless of the question as to whether it can be deemed in any sense a demurrer.

Without discussing the question whether the Court should have entertained the petition of plaintiff filed March 7th, 1923, at all on March, 6th, when it passed the order of that date,, inasmuch as neither the declaration nor the petition had been filed when the order was passed, it would seem clear that .the court then had no power to pass such an order. There was no case of record 'then that could have authorized an application for a mandamus or injunction in an action at law. There was not even a titling filed at that time. But without regard to what the appellee may contend is merely a technical question, as he claims in his brief that the declaration and petition had been left with the clerk on March 6th, although not actually filed, we are of opinion that- the statute does not contemplate granting a mandamus or injunction, and certainly appointing a trustee ex pwi'te, as was here done. The defendant, has a right to test by demurrer “the question whether the facts stated as the ground of such claim disclose any such, legal duty as that so sought to be enforced,” as shown by what we have quoted from section 126, and we cannot approve of the action of the lower court, if we ignore the fact that the declaration and petition were not actually filed until March 7th. This statute made a great change in o-ur practice when it authorized the lower court in an action at law to grant1 a mandamus or an injunction, or both. It certainly could never have been intended to authorize the issuance-of a, mandamus to compel the payment of the money sued for in an action ex contractu, or to grant an injunction, or to appoint a trustee to' take over the property in controversy, without any notice to the defendant. The sections already in part quoted are sufficient to show that such was not the intention.

Then section 120 provides that:

“In ease judgment shall be given to the plaintiff that a mandamus or injunction do issue, it shall be lawful for the court in which said judgment is given, if if shall see fit, besides issuing execution in the ordinary way for the costs and damages, also to issue a peremptory writ of mandamus, or peremptory injunction to the defendant commanding him forthwith to perform the duty to be enforced, or forbidding Mm to do, repeat or continue the wrong against which the injunction is claimed.”

Then section 134 is:

“Whenever the party claiming any of the above writs would be in any ordinary action entitled to an interlocutory judgment by default, he shall be entitled in any of the actions referred to in the nine foregoing sections to a final judgment that the writ or writs claimed do issue.”

There was no- such default in this ease. On the contrary, the suit had just been entered and the defendant had the time allowed by the statute and rules to file pleas to the declara tion, as latea* he: did, and therefore there could be no claim of right to- proceed as was done in the lower court under section 134.

It is true that Section 135 provides that:

“Any party to any action at law, after the commencement thereof and whether before or after judgment, may apply by motion ex parte to the court in which it is pending for a writ of injunction to restrain the other party in such action from the repetition or continuance of the wrongful act or breach of contract complained of,” etc.

but that section concludes:

“A judgment may be given that such writ may be granted or denied by the court upon such terms as to the duration of the writ, keeping an account, giving security or otherwise as to such court may seem reasonable and just.”

Of course thát section in no way applies to this case, but even when an application for a writ of injunction may be made after the commencement of the suit, the parties are in court and not likely to be taken by surprise, as they would be under such practice as vras adopted in this case. Moreover, that section only applies to' an injunction, and not to a mandamus, and certainly does not authorize the appointment of a trustee to take charge of the property in controversy as was done in this case.

Section 136 provides that:

“A judgment for the issue or refusing the issue of any of the writs referred to in any of the ten foregoing sections shall be subject to the same right of appeal as other final judgments,” etc.

When those sections, are carefully considered, can such a petition as the one in this case give the court the right to pass ex parte, when the suit is first brought (in this case before it was even docketed) such orders as those dated March 6th, 1923, and March 15th, 1923 ? Surely not. The one of March 8th not only commanded Zimmerman to bring into court, on or before the 20th of March, 1923, the balance of the purchase money due by him to Garfmkel and to produce all bills of creditors of the grocery store showing payments made to such creditors on account of the indebtedness due them hy Garfmkel for merchandise or otherwise, prior to January 25th, 1923, but it required him to discover to the trustee therein appointed and account for all the indebtedness due unpaid creditors of Garfmkel, and for any allowance in larger amount to him than is payable by or was paid by Zimmerman to creditors. But it did not stop there. The order appointed a trustee to administer the assets under the orders of court, authorized him to employ clerical help not to exceed $25 a week and to pay current expenses for gas, electricity and miscellaneous sundries not to exceed $25 a week, and out of daily receipts of the business to purchase the customary and necessary fresh products and groceries Avhich arei usually necessary to replenish perishable food products, etc. In short, it authorized this trustee! to take charge of that business and to do what would necessarily involve the defendant in heavy costs and expenses. All that was before the defendant had an opportunity to make his defense in the suit brought at law. Then, on the 15th of March, 1923, the court authorized the trustee to receive from the defendant the sum of $281.88, the agreed balance due on the purchase price of the sale of the grocery business and directed that the defendant pay the costs and the sum of $39.50, the expenses to date of the administration, and further, that he bring into court to be paid to the trustee the sum of $75 in lien of all commissions due to the trustee and in full of compensation to the trustee’s counsel, “aforesaid payments, aggregating the sum of $421.38, to he paid to the trustee on or before the 20th of March at one P. M.” and then the order went on to provide that on failure to receive said sum, the trustee should adA'ertise for sale at public auction the stock in trade, good will, etc., in one of the daily newspapers published in Baltimore City.

We do not find any basis for such action in the statute. We have been referred to section 132, authorizing the appointment of a trustee, but that clearly does not give any such authority, as it only provides appointing the plaintiff or some other person, at the expense of the defendant, in addition to or instead of proceeding against the disobedient party by attachment. But even then, the section goes on to provide that:

“Upon the act being done, the amount of such expense may be ascertained by the court either by a writ of inquiry or reference to an auditor as the court shall order.”

and does not attempt to make provision for the appointment of such a trustee as was appointed in this case.

The court, on March 24th, 1923, overruled the demurrer to the petition of the plaintiff and dismissed the petition and motion of the defendant to rescind the orders of March 6th, 1923, and of March 15th, 1923. As already indicated by us, the demurrer was not in shape and was properly overruled, but we think that the action of the court on the motion to rescind must be treated as the judgment of the court sustaining the issuance of the writs. As the court in our judgment had no power to pass such orders, .after its attention was called to them and a hearing had, this is in effect an appeal from a final judgment as contemplated in section 136. The defendant appealed from the orders of the 6th of March, 1923, of the 15th of March, 1923, and of the 24th of March, 1923, and each and every part thereof.

The orders of the 6th of March and the 15th of March, 1928, and the order of the 2Jfth of March, 1928, dism)issing the petition and motions of defendant to rescind the orders reversed, the appellee to pay the costs above and below.