75 Md. 574 | Md. | 1892
delivered the opinion of the Court.
The motion to dismiss this appeal must be overruled. It is based upon Article 47, section 31, of the Code, which requires records in insplvent proceedings to be transmitted to this Court within sixty dajrs from the date of the decision appealed- from. But this is an appeal from a Court of equity and is governed by Art. 5, sec. 31, which allows three months from the time of the appeal prayed for the transmission of the record. This latter section has been complied with.
The important and only question presented by the record which need now be disposed of is one of jurisdiction. On the 13th August, 1890, William L. Cross filed a petition in insolvency in the Court of Common Fleas against Lyman Fearguson — and on the loth of the same month Fearguson himself applied to the same Court for the benefit of the insolvent laws, and Joseph C. Boyd was appointed preliminary trustee.
These two proceedings were consolidated, and Messrs. Boyd and Cross were appointed permanent trustees on the 7th November, 1890.
It appears that the Baltimore Fire Insurance Company was indebted to Fearguson on a policy of fire insurance in the sum of $L447.83 which was payable on the 3rd September, 1890. During the month of July, 1890; several of Fearguson's creditors had attachments issued and laid in the hands of the Insurance Company, and during the same month Fearguson gave to several other creditors, among whom were Messrs. Ward and Hecker, the appellees, orders on said insurance money which were addressed to and left with the company, but not paid. Thereupon on the 10th September, 1890, the Insurance Company
Testimony was taken and on the 30th of September, 1891, an order was passed directing the claims of the appellees to be paid out of the fund in question. From this order the trustees of the insolvent have appealed.
Had the Circuit Court any authority to pass this order? We think not.
It has long been the established rule in this State (Alexander, et al. vs. Ghiselin, 5 Gill, 178,) that the distribution of estates of insolvents must be made by the trustee in insolvency in the Court having jurisdiction in insolvent proceedings, and in that Court alone, and whatever liens may exist against the estate of the insolvent must he enforced in the insolvent Court alone, unless otherwise allowed by statute. In the recent case of Buschman vs. Hanna & Smith, Trustees, 72 Md., 1, this rule was enforced against an attaching creditor, who, three days before insolvent proceedings were begun, had an attachment laid in the hands of a conventional trustee holding under an assignment for the benefit of creditors. This assignment having been set aside, and the grantors therein having been adjudicated insolvents, it was held that no further proceedings could he taken under the attachment, and that the attaching creditor must go into the insolvent Court where the inchoate lien he acquired under his attachment could and must be enforced.
Order reversed.