Webster v. Hardisty, 28 Md. 592

Webster v. Hardisty

28 Md. 592 | Md. | 1868

Miller, J.,

delivered the opinion of this Court.

Where a motion to dissolve is heard upon bill and answer, the responsive allegations of the latter must be taken to be true, and if the equity of the bill is sworn away by the answer, the injunction must be dissolved. It is insisted however that this case comes within the rule stated in Alex’s. Ch. Prac., 87, *597and in Lynch vs. Colegate, 2 H. & J., 34, by Chancellor Hanson, that “whenever, on motion to dissolve, it appears from the answer that the complainant was entitted to an injunction at the time of obtaining it, the same shall continue until final hearing, or further order, unless the defendant admits every thing alleged in the bill, on account of which the injunction was obtained.” We do not find that this rule has been sanctioned by any decision of the appellate Court, but we need not decide upon its correctness, because it does not appear from the answer in this ease that the complainants were entitled to the injunction when it was obtained. The case is briefly this: Webster, then Sheriff of Prince George’s county, appointed Hardisty, his deputy, and the latter gave to the former a bond dated the 19th. of February, 1858, in the penalty of $5,000, in which the other appellees were sureties, conditioned for the faithful performance of the duties of the office of Deputy Sheriff. Suit was instituted on this bond by Webster against all the obligors therein, and on the 9th of November, 1860, a judgment was recovered “ for such sum as C. C. Magruder and Samuel B. Hance should say was due.” On the 18th of September, 1862, these referees filed an award directing the clerk to enter a judgment for the penalty of the bond to be released on payment of $1,230.60, with interest from the 24th of July, 1862, and costs, “it being the amount found due by the undersigned referees after having given due notice to the defendants in the above cause,” and the judgment was entered accordingly. Upon the allegations of the bill an injunction was granted to restrain execution of this judgment. The answer admits, as the bill charges, that the judgment was originally entered in the form stated, for the purpose of allowing Hardisty an opportunity to account to Webster, concerning divers matters of official account between them, so that the whole matters in dispute should be legally and properly adjusted, according to the condition of the bond on which the judgment was obtained, and that all proper credits to which Hardisty was entitled should be allowed, but denies that the referees made their award without notice *598to the defendants as charged, but, on the contrary, avers that prior to filing their award they made several appointments for the purpose of allowing Hardisty to produce evidence of the credits to which he might be entitled, and sent by mail, properly directed, written notices to him and the other defendants, informing each of them, at least ten days beforehand, of the time, place and purpose of meeting, and notifying and requesting each of them to attend, but they failed to pay any attention to these notices; and after repeated notices of this kind and appointments, they made a final one giving the same notice, and upon a like failure of either of the defendants to attend, the referees met and made their award from the papers then before them. The answer then admits the .specific credits, amounting to $275, charged in the bill, (and receipts for which from Webster to Hardisty were exhibited with the bill,) had been paid by Hardisty, on account of the bond, and the respondent says ho is willing to allow them as credits on the judgment; that they were not allowed by the referees because they had no knowledge of them, and he could not recollect the amount and dates so as to inform them of the proper credits, but he positively denies that Hardisty was entitled to any other credits whatever, and insists that the judgment, after crediting thereon the aggregate amount of the credits so admitted, should be allowed to remain in full force and effect. Every other allegation of the bill upon which an equity could possibly be founded is then explicitly denied by the answer. It cannot be successfully claimed that it appears from this answer the complainants were entitled to the injunction at the time it was granted. The judgment in the form in which it was originally entered, was final in the sense that no further action of the Court was required, but not effective until the sum due had been ascertained by the referees, and was so entered as the bill charges and the answer admits, in order that Hardisty might have the proper credits allowed him. The referees were bound to discharge their duties fairly with due notice to all concerned, but it was incumbent on the defendants to produce the vouchers and prove the credits *599before the referees, Eot only were they not active in the assertion of their claims, but utterly neglected the repeated notices from the referees to attend their meetings. Hardisty, though he held the receipts for the admitted credits, at the time the original judgment was entered, failed to produce them then, and for two years thereafter neglected to exhibit them to the referees. By his own gross negligence he has failed to obtain at law an allowance for credits, the vouchers for which were all the time in his possession. It is a well settled and salutary rule that to justify an application to a Court of Equity to interfere with a judgment at law, some fact must be shown which clearly proves it to be against conscience to execute the judgment, and of which the party seeking relief could notdiave availed himself in a Court of'law, or of which he might have availed himself, but was prevented from doing it by fraud or accident, or the act of the opposite party, unmixed, with any negligence or fault on his own part. Gott & Wilson vs. Carr, 6 G. & J., 309; Briesch vs. McCauley, 7 Gill, 189; Huston, et al. vs. Ditto, 20 Md. Rep., 305. It •would be a material departure from this rule established “ for the prevention of negligence, and liarrassing and protracted litigation, and the consequent burdensome accumulation of costs,” to decide that a case for an injunction can be made out from this answer. The order, therefore, continuing the injunction will he reversed, the injunction dissolved and the cause remanded. In thus deciding that the appellant is entitled to an absolute dissolution of the injunction, it is proper we should remark that though the appellees have lost all remedy even for the $275, the amount of the undisputed credits, yet inasmuch as the appellant in his answer has admitted them to he correct, and has stated his willingness to allow them as credits upon the judgment, we think in “foro conscienike,” they should be credited upon the execution issued on the judgment.

(Decided 5th May, 1868.)

Order reversed and, cause remanded.