Bernstein, Cohen & Co. v. Stansbury

Briscoe, J., delivered the opinion of the Court. On the 15th day of April, 1912, an order was passed by the Circuit Court No. 2 of Baltimore City in a cause then pending wherein Jennie B. Hieatzman et al., were plaintiffs, and John Wesley Evans was defendant, adjudicating and determining the ownership of certain bonds, the subject-matter of controversy and directing the receiver in the case, to transfer and deliver these bonds to the plaintiffs, the true ³¹⁷ and lawful owners thereof. The order was passed after a full hearing, on bill, answer and proof. The clerk of the Court was further directed to enter a decree and judgment against the defendant in favor of the plaintiffs for the sum of twenty-nine hundred and thirty dollars and forty-five cents, the amount held to be due the plaintiffs by the defendant.

There was no appeal taken from this order by the defendant and the decree has long since become enrolled. On the same day (April 15th, 1912) the appellants on this record claiming to be a judgment creditor of one Albert N. Horner, since deceased, filed a petition in the suit of Hieatman et al. v. Evans, praying among other things that the Court pass an order directing the receiver to retain the bonds referred to in the proceedings in his possession and custody, until a judgment of condemnation could be obtained by them on certain attachment proceedings issued out of the Baltimore City Court and laid in the hands of the receiver. The petition alleged, among other things, that the attachment had been laid, by leave of Court obtained on the 20th day-of July, 1911, in the hands of the receiver for the purpose of establishing a lien on the bonds mentioned in the petition and asking the Court to have the bonds held to await the determination of the attachment case. From this last named order, denying and refusing the application of the petitioner, this appeal has been taken.

A motion has been made by Benjamin A. Stansbury, the receiver and the appellee here, to dismiss the appeal for the following reasons: 1st. Because it is not a case in which an appeal lies to this Court. 2nd. Because the order appealed from does not conclude or settle the rights involved in the action. 3rd. Because the order refusing to direct the receiver to hold the bonds referred to in the proceedings in the case of Jennie B. Hieatzman et al. v. John Wesley Evans, in the Circuit Court No. 2 of Baltimore City, pending the attach ³¹⁸ ment proceedings issued out of the Baltimore City Court in the case of Bernstein, Cohen & Company v. Benjamin A. Stansbury, receiver, and was passed in the exercise of sound discretion. 4th.

It is an attempt to attack collaterally the decree of the Circuit Court No. 2 of Baltimore City, passed in the matter of Jennie B. Hieatzman et al. against John Wesley Evans. 5th. The appellants were not parties to the proceeding and had not intervened or appeared in the case as claimants. It is clear, we think, that the motion to dismiss the appeal must prevail. If the appellants were parties to the suit of Hieatzman v. Evans, by reason of the leave of Court to lay the attachment in the hands of the receiver passed on the 20th day’ of July, 1911, they are undoubtedly bound by the order of Court of the 15th day of April, 1912, determining that the bonds were the property of Jennie B. Hieatzman and Fannie M. Goodwin and not the property of Albert N. Horner, the judgment debtor.

There was no appeal from this decree, and therefore, the appellants would be concluded and bound by it. The original suit was instituted in part for the purpose of determining the ownership of these very bonds, and the appellants had full knowledge of the pendency of the suit, as will appear by their petition filed in the case, and could have intervened for the purpose of protecting whatever right or claim they may have had to the bonds in dispute. Whether parties or not to the original proceedings in the Circuit Court No. 2 of Baltimore City, they would be as effectually bound by the decree as if they had been parties named on the record, under the facts of this case. In Albert v. Hamilton, 17 Md. 304, it is said, it is contrary to the policy of the law to allow the same