87 Md. 634 | Md. | 1898
delivered the opinion of the Court.
There are certain preliminary questions, raised by the counsel for the appellants, that will be.first considered.
It is contended that the case has never been set down for final hearing, and therefore it was erroneous to pass a final decree. This was denied as matter of fact by the appellee’s counsel. However, we must accept the adjudication of the decree, to the .effect that the cause stood ready for hearing; and even if this did not appear, it seems to be well founded, both upon reason and authority, that where a party, without objection, appears and participates in a premature final hearing, it. is a waiver of the irregularity. 10 Ency. Pleading and Practice, page 15 and note 2.
It is also insisted that the affidavit to the bill is not sufficient, in that it is made neither by the plaintiff nor by any person having or professing to have personal knowledge of the facts set forth in the bill, and for that reason the preliminary injunction should not have been issued. This is alleged as ground for reversing the final decree. But the matter with which we are now concerned, is not whether the preliminary injunction was properly issued. The cause was before the Judge in the lower Court on final hearing, and what is now before us is whether on bill, answer and proof, the complainant has made such a case as properly entitles him to the decree actually entered. If this be affirmatively determined, it will be quite immaterial whether the preliminary writ was prematurely granted or not. An ex parte application for an injunction upon bill and exhibits goes to the sound discretion of the Court, and it must come verified in such a manner as to present strong prima facie evidence, in support, of the averments, upon which the alleged equity rests. Such applications involve the exercise of a power, oftentimes demanding the highest degree of delicacy, caution and sound discretion, so that cases may
The substantial purpose of the bill is to obtain a decree declaring a certain fund on deposit in the Eutaw Savings Bank of Baltimore to be the property of the áppellee and payable to him. The bill alleges that the appellee is a resident of Berlin, Prussia; and that Anna Vierath, now called Rothenburg, was his lawful wife, and lived with him until the third day of November,' 1896; that on that day he obtained a conditional decree of divorce which was made final and absolute on the ninth day of February, 1897. That the ground of this decree (which was rendered by a Court of competent jurisdiction in the city of Berlin), was adultery with her co-defendant, Heinrich Rothenburg. That on the 26th of March, 1896, the said Anna left the home of the complainant taking with her bonds of the Prussian Government of the aggregate value of 10,000 marks, all of which were his exclusive property. That thereupon the complainant instituted suit and obtained a judgment, direct
There can no question be made as to the jurisdiction of .the Court, to entertain a case like the one made by the bill. The averments contained in it, make out a gross fraud. Briefly stated, they charge, that one of the defendants, having stolen, sold and transferred the complainant’s.property, has confederated and conspired with her co-defendant to conceal the proceeds of the sale by a deposit in bank under a false name, with the purpose of finally converting it to their joint use. The averments of fraud in the bill are sufficient to vest jurisdiction and the mere denial of them in the answers does not oust it. Dillon v. Conn. Mut. L. Ins. Co., 44 Md. 393.
The only question therefore remaining for us is, does the proof sustain the allegations contained in the bill ? It is not disputed that the ownership of the .bonds was in the complainant at the time his wife appropriated them, and must still remain there, unless in some legal manner he has parted with his title. Mrs. Vierath states that he gave them to her, and that the -inducement for his so doing was to conciliate her, she having caught him in an act of adultery and keep her from “ telling her parents. ” Vierath was a saloon-keeper in the city of Berlin. From suggestions contained in the evidence, we may infer that he was not possessed of large means. He must have known of .Rothenburg’s attention to his wife; they were driving together and -he had been taking her to picnics, parties and on excursions. It strains our credulity not a little to be required to believe, that under these circumstances Vierath
‘ all that belonged to a household,” “ it would take too long to give a detailed statement.” Yet this “ city residence,” contained but one room and the rent of it was twelve marks per month. She also alleges she spent two thousand marks for clothing; yet all she had, she brought to America in one trunk, one satchel and two baskets. On •the other hand, her journey to Liverpool, as described by herself, would seem to indicate, not only the possession of .ample funds, but also a desire to avoid observation. Instead of taking the usual and shortest route, she selected -an unusual and round-about one, and pursued it in a leisurely fashion, as one with abundant means. At Wesel she lingered four days “ for her pleasure;” at Antwerp two weeks, and at Liverpool ten days. She says “ she went to look at everything.” Instead of travelling under her own
Was Rothenburg a participant in this fraudulent scheme ? He admits having met a young man named Joos at Antwerp, and journeyed with him to this country. The two became intimate on the passage, and after they arrived in this country, lived on the same farm in the service of the same master. In his conversations with Joos, Rothenburg seems to have been very unreserved. He-tells him everything about his relations with Mrs. Vierath, and why he left Berlin, Rothenburg denies that he had such conversations, but that he had cannot be doubted.' Joos has given us facts, .conceded to be correct, that he could only have obtained in the manner which he has related. He is also corroborated by the witness Blum, to whom Rothenburg was equally confidential. The conversations of Rothenburg as detailed by Blum, are substantially the same as those testified to by Jo.os. On the other hand the testimony of Rothenburg is burdened with all.the implications tobe drawn from the established facts, with the necessity of forcing strange and unusual coincidences in any attempt to harmonize his statement, and with the caution with which the statements of one so deeply interested in the results of the litigation must always be received. Moreover the statement made by him to Joos and Blum at a time when further concealment was no longer necessary and made too in the freedom of friendly intercourse,
We deem it unnecessary and profitless, to discuss this testimony at greater length. We content ourselves with saying we find the averments of the bill fully sustained. We are of opinion that the money on deposit in the Eutaw Savings Bank, is part of the proceeds of the sale of the complainant’s bonds ; that these bonds were stolen from him
We have made no allusion to the exhibits purporting to be copies of judgments in the Prussian Courts. If we had relied upon them, they would have materially supported the conclusion we have reached.
Decree Affirmed.