77 Md. 21 | Md. | 1893
delivered the opinion of the Court.
The questions presented by this record,' and so ably argued, are interesting and important, but, inasmuch as we have concluded the motion to dismiss the appeal must prevail, we will proceed at once to consider it. A statement of the facts upon which this motion is based will be necessary before giving the grounds of our conclusion.
On the 25th July, 1874, Albert Ordway brought an action of debt in the Baltimore City Court against the Central National Bank of Baltimore, and in this appeal the plaintiff Ordway is the appellant, and the defendant Bank is the appellee. The action was brought under the thirteenth section of the Act of Congress, generally known as the National Banking Act, to recover double the amount of interest unlawfully taken by the appellee in excess of the legal rate. As originally brought the action was by Albert Ordway, and the declaration alleged that he sued for the use of himself and for R. Snowden Andrews and James Green, late co-partners under the name and style of Andrews, Ordway & Green;
There are other allegations in the declaration to the same effect.
The defendant demurred on the ground that the declaration alleged a joint cause of action and only one sued, and also upon other grounds. Subsequently the demurrer was sustained by the Court below on the ground that the Act of Congress referred to, so far as it conferred jurisdiction on a State Court, was unconstitutional, but did not notice the alleged defect arising from want of proper parties — except to remark that the question of jurisdiction was conclusive of the case, and the other defects could be cured by amendment. Accordingly an amended declaration was filed which makes no reference whatever to the partnership or to Andrews and Green, and counted simply upon transactions between Ordway acting in his own name and behalf, and the Bank. The amended declaration was demurred to on grounds other than those based upon the failure to join Andrews and Green as plaintiffs, that objection having been removed by the amendment.
On the former appeal (47 Md., 241,) we held, reversing the lower Court, that the Act of Congress was constitutional, and that the Baltimore City Court had jurisdiction to entertain the action. On the 19th July, 1877, the case was remanded, and no proceedings appear to have been taken by either party until the seventh of March, 1879, when a petition in the name of Albert Ordway was filed by Messrs. Marshall and Fisher for petitioners, asking to have the case set for hearing. The caption of this petition was in the name of Albert Ordway, use of Andrews, Ordway & Green. No action,
On the 14th December, 1880, Mr. James McColgan entered his appearance in the case for the plaintiff Ordway, and the same day the following order of dismissal of the case directed to the clerk of the Court was filed: “Enter this case dismissed.” “James McColgan, attorney for plaintiff. ’ ’
Andón the.8th of the following month, Messrs. Marshall & Fisher, attorneys for Andrews and Oreen, filed a motion to strikeout the above order of dismissal, and to strike out defendant’s pleas of release upon the following grounds:
“That said Ordway is only nominally the plaintiff in this action, and hath no real interest in the same, hut that said action was originally instituted in the name of said Ordway, for the use and benefit of the firm of Andrews, Ordway and Creen, composed of said Ordway and the said Andrews and the said Creen, and that said Ordway at the time of causing said suit to be dismissed, and at the time of executing and delivering the release in said plea set forth, had ceased to have any beneficial interest in said suit, or in the money sought to be recovered in the same, and said suit and said recovery sought therein were exclusive the right and property beneficially of said Andrews and of said Creen, as members of said firm, and as entitled as such to all the assets thereof, of which the money sued for in this action was and is part, the contract out of which said suit arose, being as
On the 23d March following certain depositions, with accompanying exhibits were filed, which appear to have been taken before the standing commissioner of the Court, Mr. H. E. Maun, in behalf of R. Snowden . Andrews. Written notice of the talcing of these depositions was given by the commissioner to the attorneys of the respective parties, the plaintiff’s attorney admitting service of copy of the notice, but the defendant’s attorney refused to do so, and did not attend. It appears that the depositions were taken in the presence of the attorneys for Andrews and Green and the attorney for Ordway. The motion was overruled, and from this action of the Court Andrews and Green have appealed. The only question we shall now consider is whether under the circumstances of this case, the appeal lies ?
It will he observed that the appellants are not parties to the record, except for the purpose of filing the motion to strike out. the entry of dismissal. They call themselves equitable plaintiffs, but they never took any steps to have the case entered to their use. On the contrary, although the cause was instituted in 1874 by the filing of a declaration, in which it was alleged they were beneficially interested in the cause of action, yet this position was subsequently abandoned, and a new case was made by an amended declaration which entirely ignores their claims, and alleged rights, and is based ujion
Not being parties to the suit, but comiiig in as they expressly do, as equitable plaintiffs, asking a Oourt of law to exercise what is called its quasi equitable j urisdiction for the protection of their equitable rights, what is their position and what are their rights under these circumstances.
In the case of Shriner vs. Lamborn, use of Smith, 12 Md., 170, the late Chief Justice Bartol, in delivering the opinion of the Court says: “There is no doubt of thesoundness of many ofthe positions assumed by the appellee’s counsel on the argument of this cause. That a Court oflaw will recognize the rights of equitable assignees of dioses in action, and protect the rights of cesiuis que trust has been repeatedly asserted; but as the Court of Appeals say, in Green vs. Johnson, 3 G. & J., 393, “It is done in the exercise of a quasi equitable jurisdiction, where an appeal is made to the justice and discretion of the Court, by way of motion, the matter whereof cannot be insisted on as a legal right, or presented in the form of a plea.” It will be noticed that the case just referred to was originally brought in the name of Lamborn for the use of Smith the equitable plaintiff, and yet in determining the only question before it in that case, namely the admissibility of testimony showing payment to the legal plaintiff Lamborn, although the defendant had notice of the transfer and delivery of the notes to the equitable plaintiff at the time of the alleged payment to the legal plaintiff, the Oourt say, “it must not be forgotten that we are dealing with a case at law. So far as the pleadings disclose, the
Such is the course required of an equitable plaintiff who institutes an action in the name of the legal plaintiff, and then or before it is dismissed has it entered to his own use. And if he thus makes himself a party not only by the entry of the case to his use, but also by pleading with the leave of the Court, he would be bound by the judgment, and would, therefore, unquestionably have the right to appeal, provided such right were duly exercised.
But not being party plaintiff either by an entry to his use, nor by coming in before the dismissal of the case, he certainly would not be bound by any judgment therein, and if he wished to avail himself of such a suit he would be compelled to proceed as the equitable plaintiffs, Andrews and Green, have done here, namely, by motion appealing to “the justice and discretion” of the Court. And having done so, it must be conceded that under all the authorities here and elsewhere there is no appeal. 2 Poe on PI. and Pr., section 82T, and authorities there cited. In the case of Welch vs. Mandeville, 7 Cranch, 155, as
It must be remembered also that this is an attempt to have reinstated au action to recover penalties and forfeitures under an Act of Congress, and no doubt this is one of the reasons which induced the Court below to overrule the motion.
The application being, as we have said, made for the exercise of the equitable powers of a common law Court assumed for the protection of the assignees of dioses in action, Welch vs. Mandeville, 1 Wheat., 233, such Courts
In both of these cases the same language is used — in the latter by Chancellor Kukt, that equity never under any circumstances lends its aid to enforce a forfeiture or penalty “or any thing in the nature of either.”
As we have said, ordinarily the effect of an order refusing to reinstate could in no manner affect the interests or rights of the equitable plaintiffs, and, if in this case it happens they are prevented from bringing another suit, it is not because of the inherent nature of the order appealed from, but by reason of their own neglect. It has been expressly held in United States vs. Evans, 5 Cranch, 280, that a refusal to reinstate a case after a non suit or dismissal is not the subject of appeal. And this for the evident reason, among others, that such a disposition of a case is not final. Rut if the plaintiff neglects to prepare for the trial of his case, fails to summon his witnesses, and is compelled to submit to a judgment of non suit, such judgment is not the subject of appeal if the plaintiff can renew his suit, yet according to the contention of the appellants, if by reason of his own negligence and delay it is too late to bring another action, then the judgment of non suit is appeal-able. We cannot accept this view.
Having concluded that no appeal lies in this case, the motion to dismiss must prevail.
Appeal dismissed.