Frazier v. White

49 Md. 1 | Md. | 1878

Bowie, J.,

delivered the opinion of the Court.

The bill in this case is filed by Anna Maria Frazier and Edward II. Frazier, her husband, of the City of Baltimore, against Alfred White, William J. Frazier, and S. Sands Mills, sheriff, to obtain an injunction to stay the execution of a writ of ji. fa. issued by White on a judgment obtained by him against William J. Frazier, his co-defendant, and levied by Mills, as sheriff, on certain personal property, which the complainant, Anna Maria, claims to own in her own right.

The gravamen of the bill is, that the complainant, Anna Maria, being the owner of certain tools and machinery, in her own right, located in certain tenements Nos. 132 and 134 in Thames street, Baltimore, of the value of ten thousand dollars, and being actively engaged in operating said machinery and tools, in the manufacture of machinery .of various kinds and descriptions, the stoppage of which would entail upon her great and irremediable loss, and the destruction of her business, the defendant, Wm. J. Frazierj leased the houses from Edward J. Frazier in October, 1874, and occupied the same until October, 1876, when he surrendered the same to the said Edward. That after-wards at January Term, 1877, of the Court of Common ■Pleas, the said William J. Frazier, fraudulently caused a suit to be instituted against himself by one Alfred White, and confessed judgment thereon for S1240.

That on the same day, a writ of fieri facias was issued on said judgment, and in obedience to its commands, S. Sands Mills, Esq., sheriff of said City, has levied the same upon the machinery and tools in Nos. 132, 134 Thames street, and advertised the same for sale.

The complainants charge that the suit instituted by White against William J. Frazier, is a conspiracy entered into between them, whereby the machinery and tools in the premises Nos. 132, 134 Thames street and the property of the complainant, Anna Maria, should he sold at a ruinous sacrifice,-under cover of legal proceedings, the business of - said oratrix utterly ruined, and her property unlawfully taken from her, etc.

They allege the complainants have not an adequate and sufficient remedy at law, wherefore they prayed an injunction, and other and further relief.

A provisional injunction was granted with leave to move for its dissolution, upon filing the answers of the defendants.

Frazier and White answered separately, arid both deny all the material averments of the bill. Each, specially pleads, that the complainants have a full, adequate and complete remedy at law, for any loss they might sustain by reason of said judgment and proceedings thereunder.

They deny that the complainant, Anna Maria Frazier, owns said property, or that she is carrying on the business, and charge that she is not entitled to relief in equity.

A commission was issued by agreement of counsel, to have the same effect as if issued to the standing commissioner, under which voluminous testimony was taken and returned.

The learned Judge below, upon argument of the case, dissolved the injunction and dismissed the bill for want of jurisdiction.

This preliminary objection standing at the threshold of the case, it is proper it should be first examined and disposed of, as upon the result depends the question, whether it will be necessary to enter upon the merits of the controversy.

There can be no doubt, if the injury complained of was committed against a person “ sui juris,” -a feme sole for instance, that the remedy at law being full, adequate and complete, a Court of equity would not intervene.

There is nothing in the character of the goods, or nature of the business pursued by the complainant, Anna Maria Frazier, which exempts them from the general rule, recognized by this Court in numerous instances. Vide Lewis, et al. vs. Levy, 16 Md., 90; Pfeltz, et al. vs. Pfeltz, et al., 14 Md., 381.

The instruments in this case, under which the complainant, Anna Maria Frazier, claims title to the tools and machinery, seized in execution, and the sale of which is sought to be enjoined, (described as being in Nos. 132, 134 Thames Street, Baltimore,) convey to her directly the property therein described. Under the first and second sections of the Code of Pub. Gen. Laws, Art. 45, if valid and bona fide, they invest her with a separate interest and right in the property so conveyed, and the fourth section of the same Article, declares “a married woman having no trustee, may by her next friend, sue in a Court of law, or equity, in all cases for the recovery, or security or protection of her property, as if she were a feme sole.”

(Decided 9th May, 1878.)

This section imparts the most ample authority to femes covert, to resort to all the remedies known to the Courts of law or equity, for the redress of injury, or assertion of right, but it does not mean to confound the jurisdiction of the several Courts, by authorizing a bill in equity to be filed for an injury which is properly cognizable in Courts of law, or vice versa, to proceed at law in a case properly cognizable in Courts of equity. Where the injury to be redressed is one which may be compensated in damages, or the right of property, may be tried in an action of replevin, the plaintiff, although a married woman, is still required to resort to the forms of action prescribed by the common law, with this difference, that she must sue by her next friend.

Assuming the allegations of the bill to be true, it is manifest that the complainants have mistaken their remedy, and there is no alternative left to this Court, but to affirm the decree below.

Decree affirmed, with costs to the appellee.