57 Md. 362 | Md. | 1882
delivered the opinion of the Court.
This bill was filed by the appellant to restrain execution of a judgment recovered against him by James M. Jones. The bill charges, that the complainant is entitled in equity to set off against it certain claims, aggregating more than the amount of the judgment, and therefore prays for an injunction restraining execution of the whole judgment. Upon the filing of the bill, the Court, on the lVth of April, 1880, passed an order granting an injunction restraining the defendants from proceeding with the . execution issued on the judgment, “ until they shall have first credited ” thereon the amount of a certain single bill, being -one of the claims relied on by the complainant as a set-off, the complainant treating this order as a refusal of the injunction, as to the balance of the judgment, entered an appeal therefrom on the 31st of December, 1880. Afterwards, on the 6th of April, 1881, the Court, upon petition of the defendants, so modified the restraining order as to allow them to proceed with their execution for the balance due on the judgment after crediting thereon the amount of said single bill. This modification simply made the order conform to what was obviously the intention of the Court, when it was originally passed, and to the settled practice in such cases ; for if the Court was right in assuming that this single bill was the only credit to be allowed on the judgment, then the in
Each appeal is by the complainant from a refusal to grant an injunction to the extent prayed for by his bill. He asked that execution of the entire judgment should be restrained, but this was refused and hence his appeals. By sec. 25, Art. 5 of the Code, as amended by the Act of 1868, ch. 102, it is provided that, “whenever any Court having equity jurisdiction, shall refuse to grant an injunction according to the prayer of the bill, or petition filed in the cause, an appeal may be taken from such, refusal, by any party aggrieved thereby, and the said appeal shall be heard on a transcript of the said bill or petition, with such other papers or proceedings in the cause, as may be considered necessary for the purposes of the appeal, and as soon as conveniently may be after such transcript shall have been filed in the Court of Appeals ;” and by Rule 10, regulating appeals, (29 Md., 4,) it is provided that whore appeals are taken under this provision of the Code, “ the transcript of the record shall be made and transmitted to the Court of Appeals forthwith after the appeal prayed.” It is very clear that a delay of more than five months in the transmission of such a record as the one in the case before us, is not in compliance with the rule that it shall be made and transmitted “forthwith after the appeal prayed.”
The facts of the case, necessary to he stated, are briefly as follows: Jones and his wife separated in February, 1873, and in April, 1874, the wife died intestate, hut leaving children. Shortly thereafter letters of administration upon her estate were granted to her brother, the present appellant. Jones, the surviving husband, then applied to have these letters revoked, upon the ground that the grant of them was contrary to law, and in contravention of his rights in her property. The order revoking the letters, was, on appeal affirmed by this Court, and the case is reported in 42 Md., 422. In that case it was decided, 1st, that whatever personal property Mrs. Jones died possessed of she acquired and held under the first section of Article 45 of the Code, and by the second section of that Article, her surviving husband was entitled to a life estate therein, she having left children. 2nd, that the surviving husband had not, by the articles of separation
He sets up certain claims as a set-off to the judgment. The first of them is a single hill for $528.67, executed to him hy Mrs. Jones on the 16th of February, 1874. The propriety of allowing this as a set-off is a question not presented hy these appeals. The Court below, hy the orders from which the complainant alone has appealed,
1st. The first is a claim amounting to $776.35, and consists of an open account commencing in May, 1874, and running to March, 1877. The items are mainly charges for the support, clothing, board and maintenance of the children of the deceased wife, supplied, furnished and paid for by the complainant after her death. The account commences after the death of Mrs. Jones, and we do not see how it is possible to make this a valid charge or lien upon the separate estate of which she died possessed. .The surviving husband, who was also the father of these children, was hound to support and maintain them, and if this support was furnished by some one else, it might furnish ground of action against the father, but it is plain, that a lien upon the wife’s separate, property cannot be created in that way.
2nd. The same thing may be said of the second claim, amounting to $66.90 for funeral expenses of the wife, paid by the complainant. The husband is chargeable with
3rd. The third claim arises out of the fact, that Jones sued the appellant for enticing away his wife, and failing in the action, the appellant recovered a judgment against him for §102.75 costs, but he cannot so use this* judgment as to diminish the amount of the sum recoverable under the judgment against himself. That sum, as we have said, constitutes a fund in which the children arc interested, and to which they are entitled after the death of their father. The principal of that fund cannot ho diminished by the individual debts of the husband, and this judgment for costs, affords, therefore, no reason why execution of the judgment against the appellant, and the collection of the amount due thereon should be stayed.
These views dispose of the question presented by the appeal, and it follows that the appellant lias no cause to complain of the order which allows the execution to pro-need for the balance due on the judgment after crediting the amount of the single bill. It, matters not to him whether this balance be collected, and the judgment to that extent enforced by Jones, the original judgment creditor, or by parties to whom ho has made assignments thereof. If the children were intervening and asking a Court of equity to have the sum when collected set apart and invested so as to secure its payment to them upon the death of their father, then the question would have arisen as to his power to assign the judgment, and the right of the assignees to appropriate to their own use the amounts severally assigned to them. But no such application has been made by or on behalf the children, and as the record stands, the order of the 6th of April, 1881, will he affirmed, and the cause remanded.
Order affirmed, and cause remanded.