Everett v. State ex rel. McKaig

28 Md. 190 | Md. | 1868

Miller, J.,

delivered the opinion of this Court.

After affirmance, in the case of Everett, Adm'r of Tough, vs. Avery and others, reported in 19 Md. Rep., 136, of the order appointing the receivers, they brought the present action on Everett’s appeal bond, to recover the value of the property in their possession at the time of the appeal, which had been disposed of pending the appeal. The condition of the bond is to transmit the record, prosecute the appeal with effect “ and also indemnify and save harmless ” Avery, Reid, Snyder and Montgomery the petitioning claimants, “and all other persons who may be entitled to the benefit of said decrees or orders, from all loss and injury which they or either of them may sustain by reason of said appeal, and also pay all costs and charges awarded by the said Court of Appeals.” The declaration sets out the bond and assigns breaches somewhat informally, but yet with sufficient plainness, especially in the second count, to be protected front the demurrer by the 3d section of the 75th Article of the Code. The defendants pleaded ten pleas to which the plaintiff demurred, and the Court overruled the demurrer as to the first, third and fourth, on which issues were then joined, and sustained it as to all the others. The rulings in sustaining the demurrer to this extent, and in granting the plaintiff’s two, and rejecting eight of the defendants’ prayers, are now before us for review. Some of the material questions in this case are disposed of by the decision in Blondheim vs. Moore, 11 Md. Rep., 365. That was an appeal from an order granting an injunction and appointing a receiver, and there, as here, after appeal bond filed, an order was passed on the defendant’s application, directing the receiver to deliver back to him the property. In deciding upon the effect of an appeal in such a case, under the Act of 1853, ch. 374, which is embodied in the Code, Art. 5, secs. 21 and 23, and of the affirmance of the order appealed from the Court say, “every thing is stayed, suspended until judgment shall be pronounced by the appellate tribunal, that is- to say, the ‘operation’ and ‘effect’ of the injunction wholly and entirely ceases,” and “ if on an appeal from an order granting an injunction, this Court should affirm the order, and the thing on which the order was intended to operate should exist in specie in the possession of the defendant, then the injunction is restored to its original vigor ; or if the thing is consumed or disposed of, then the complainant must proceed on the bond which is given for the express purpose of indemnifying him from all loss and injury which he may sustain because of the appeal.” The same law regulates appeals from orders appointing receivers, and the same effect must be given to the appeal, and to the affirmance- of the order by the appellate Court. This settles the question that the affirmance operates of itself a revocation of the order of the Court below, directing the receivers to deliver the property back to Everett, and re-affirms what was well settled before, that the measure of damages in the suit on the bond, where the property has been disposed of pending the appeal, is the value of that property at the time the appeal was taken. This disposes of the tenth plea and the third reason in the eighth prayer, which assert that the order directing the property to be delivered back to Everett, remained in force after the affirmance of the order appointing the receivers, and also of the tenth prayer relating to the value of the property as the basis of damages. The question of value and measure of damages was fairly and correctly put to the jury by the granting of the sixth, seventh and eleventh prayers, and the plaintiff’s second prayer. This latter prayer is not open to the criticism that it confines the jury to the appraisement made by Percy and Parker. It says if the jury find this was a fair valuation, “ and that the same was the value ” of the property, then the plaintiff was entitled to recover the amount of such valuation, thus leaving it to them to find the value from all the evidence in the cause. It is also objected to this second prayer of the plaintiff, that it assumes or fails to leave to the finding of the jury many facts essential to the plaintiff’s right to recover. The only such facts are the appointment and bonding of the receivers, the orders appealed from and their affirmance, the possession of the property by the receivers at the time of the appeal, and the. disposition of that property pending the appeal. All these were undisputed facts in the case, and most of them were proved by record evidence offered by the defendants themselves, and this objection is made for the first time in this Court. Prior to the Act of 1862, ch. 154, such a prayer would unquestionably have been so defective as to require a reversal of the judgment. But that law as construed in Morrison & Kildow vs. Hammond’s Lessee, 27 Md. Rep., 604, applies to this prayer, and prevents us from deeming it defective, no objection on this ground appearing to have been taken to it at the trial.

The eighth prayer denies the right of the receivers to bring this action, because they had no interest in the bond, and had not obtained the previous order of the Court to bring it. This bond, as we have seen, was placed in lieu of the property to which, as expressly decided in 19 Md. Rep., 136, the receivers had the exclusive right of possession, and they were in actual possession of it at the time the appeal was taken. We are clearly of opinion they not only had the right, but that it was their duty to institute this action. They held their appointment not merely under the terms of the order appointing them, but under the provisions of a statute, (Code Public Local Laws, Art. 1, secs. 101, 102,) which made it their duty to take charge of and sell this property, and collect the debts due to the deceased, and declared they should “ be bound and held liable for every default, negligence or malfeasance in office.” They would have been negligent in the discharge of their duty, if they had failed to bring this suit immediately upon the affirmance of the order appointing them, and no order of the Court directing them to do so was required. It is, therefore, wholly unnecessary to inquire whether in ordinary cases a receiver can bring an action without the previous order of the Court from which he derives his appointment. The second and seventh pleas, and the defendants’ first prayer present, substantially, the same defence, viz: that the plaintiff cannot recover in this suit the value of the property distrained and sold by Neff under his distress warrant of the 8th of May. This defence cannot be sustained. If Neff had the right to make that distress and sale, he acquired it only by reason of the appeal and the giving of this bond. The receivers were appointed April 22d, and obtained possession of the property the next day. The appeal was taken and the bond- filed April 30th, and the order restoring the property to Everett was passed May 5th. By the affirmance of the order the receivers were placed in the same position, in regard to their right of possession of the property, in which they stood at the time the appeal was taken. At that time it is very clear the landlord could not have distrained without the order or leave of the Court by whom the receivers were appointed. 7 Paige, 513, Noe vs. Gibson, and authorities cited in the preceding case of Everett vs. Neff. The bond being placed by law in lieu of the property, if that is disposed of pending the appeal even by legal process under superior title, but which could not have been executed except for the appeal, it is no answer to an action at law on the bond to say the property was taken and sold under such process. If, therefore, th'e distress had been legal, still the value of the property must be restored to the receivers, and disposed of by the Court in the case in which they were appointed, and Everett must seek his remedy against the fund there. We have, however, decided in the preceding case that this distress was illegal. The plaintiffs’ first prayer was properly granted, and the defendants’ second, third, fourth, fifth and ninth properly rejected. There is no evidence that the receivers procured or induced Neff to make the distress of the 8th of May, or that they knew of, or acquiesced in it. The fact that the receivers acted as counsel for Neff in the trespass suit, and consented to the agreement in relation to the abandonment of the distress of the 17th of April, is no evidence from which the jury would be authorized to infer that they procured or induced the issue of that of the 8th of May. The fifth plea, if regarded as a denial of the receivers’ right to sue, has already been disposed of. As a plea of non damnificatus it is bad, and in so holding we need not decide whether such a plea is, under any state of pleadings, applicable to an action on an appeal bond. In this case the declaration assigns the breaches, and the only theory and purpose of the plea of non damnificatus is to compel such an assignment, and the only answer that can be nmefe to it is a replication setting forth how the party has been damnified. 1 Chitty’s Pl., 585; Evan’s Pr., 198; Richards vs. Hodges, 2 Saund. Rep., 83; Hulland vs. Malken, et al., 2 Wils, 126; Cox vs. Joseph, 5 Term Rep., 309. The same objection applies to the sixth plea, and besides it is no answer to the suit of these plaintiffs to say that other parties have not been damnified. The eighth plea is bad, it' for no other reason, because whilst professing and assuming to answer the whole declaration, it answers only a part. 1 Chitty’s Pl., 523, 524; Mitchell vs. Sellman, 5 Md. Rep., 384. The ninth plea negatives an entirely immaterial averment of the declaration. The receivers had no interest in the costs recovered in the Court of Appeals, and no right to sue for them, and the allegation of non-payment of these costs in this declaration, was mere surplussage upon which no issue could properly have been joined.

(Decided 12th February, 1868.)

Judgment affirmed.