Bowie v. Smith

Briscoe, delivered the opinion of the Court. This is a bill, filed on the 28th of September, 1901, by the appellant against the appellee in the Circuit Court for Prince George’s County for a mandatory injunction to compel the latter to restore and remove to the premises of the former a certain building, which it is alleged he had illegally removed therefrom. It appears that the case was heard on the bill alone, and submitted to the Court below after argument by counsel of the parties, and from an order of Court, passed on the 4th of February, 1903, refusing the injunction and dismissing the bill, this appeal has been taken. The bill avers that the plaintiff and a brother, Charles S. Early, and the children of a deceased brother, James A. Early, were seized as tenants in common of a small lot of land situate in Brandywine district in Prince George’s County, the legal title to which was derived from one William H. Early, the father of the appellant ; that Charles S. Early in or about the year 1900, by a parol agreement undertook to sell the real estate here in controversy to the defendant, Julius K. Smith, who by virtue of such sale entered into possession of the land, and erected thereon a frame building, known as “Smith’s Restaurant” and occupied the same until sometime shortly before the proceedings in this case.

The bill further states that on the day of October, 1901, the appellant by an action of ejectment in the Circuit Court for Prince George’s County, recovered a judgment in ejectment against the defendant Smith for the land in question to the extent of one- ³²⁸ third interest therein ; that shortly before the filing of this bill and before the hearing of the action in ejectment, the defendant removed the building, or house, by means of blocks and rollers from the land whereon it had been erected to the land of another, adjacent to the plaintiff’s land; that the defendant Smith is totally insolvent and the plaintiff is unable to have full and adequate relief without the aid of a Court of equity. The question then to be considered is whether the bill and exhibits present a proper case for the relief asked. The affidavit to the bill is made by Mr. Alan Bowie, who, it appears from the brief, is one of the attorneys of record in this Court for the appellant. He made oath “ that the matters and things set forth in the above petition are true to the best of his knowledge and belief.” It appears from the record that Messrs.

Stanley and Roberts were the attorneys who filed the original bill on behalf of the plaintiff, but even if it be assumed that Mr. Bowie was an attorney of record in the case below at the time of the filing of the original bill there can be no question that the bill was defective for the want of a proper affidavit. In the case of Fowble v. Kemp, 92 Md. 640 , this Court held, in reviewing the rule as to the verification of bills of complaint filed in equity for injunctions, that when the affidavit on its face shows, as this one does, that it is made not by a party to the cause, but by a person who could not know the facts, except by hearsay, unless his means of knowing them in such a way as to authorize him to testify be disclosed, a Court has no right to assume that his knowledge is personal rather than hearsay, if it may be