Braecklein v. Braecklein

Offutt, J., delivered the opinion of the Court. Anna C. Braeeklein was, on March 10th, 1919, by a decree of the Circuit Court of Baltimore City, divorced a vinculo matrimonii from Alfred IT. Braeeklein, her husband. Among other things, that decree provided that— “the household furniture mentioned in the proceedings be divided equally between the parties to this cause; and * * * that the defendant, Alfred H. Braeeklein, account to the plaintiff, Anna C. Braecklein, for one-half of the sum collected by him prior hereto up to and including the day of this decree as rents, issues, and profits of the property mentioned in these proceedings.” The property mentioned consisted of certain real and leasehold property in Baltimore City which the parties during coverture owned by the entireties.

On March lfth, 1919, Mrs. Braeeklein filed a bill in the same court asking for an accounting from her former husband for the rents and profits issuing out of these properties and for the appointment of a receiver, to take over and manage the same and to collect the rents, issues and profits therefrom, and on that bill Eugene Frederick was appointed a receiver. ³⁴⁴ On June 25th, 1920,'a decree was signed, in a partition proceeding of Alfred H. Braecklein against Anna O. B'raecklein, dividing this property between the parties. On July 8th, 1920, a petition was filed by the receiver referred to above, in which, after reciting the facts referred to above, he alleged: “That although your petitioner has made several demands upon the said Alfred IT. Braecklein personally and upon his solicitor, demanding that he account to your petitioner for the rents collected by him in accordance with the provisions of the decree set out in the preceding paragraph, and although demand has also been made by your petitioner upon the said Alfred IT. Braecklein to account to your petitioner for the fair rental value of the property 1328 South Charles Street, which was one of the properties held by the parties to this suit as tenants by the entireties and which property the said defendant has occupied since the separation of these parties, to wit, January, 1918; “That on the 25th day of June, 1920, a decree was passed in this honorable court ratifying and confirming a partition heretofore made between the said Anna O. Braecklein and Alfred TL Braecklein of all the properties held by them jointly, and your petitioner as receiver is now required to state his final account as such receiver and distribute the funds now in his hands according to the order of this honorable court; that before a full and complete and accurate account can be stated it is necessary that the defendant, Alfred TL Braecklein, account to your petitioner for the rents aforesaid; “That a partition of the property having been made and confirmed, the parties now hold the property allotted to them respectively in severalty; “That your petitioner believes and therefore avers and alleges that the defendant, Alfred TI.

Braeeklein, ought to be restrained and enjoined from dis ³⁴⁵ posing of any of his property until he has made a full and complete accounting to your petitioner in accordance with the decree heretofore set out.” And hei asked: “That an order be passed by this honorable court requiring the defendant, Alfred H. .Braeeklein, to show cause why he should not account to your petitioner for the rents aforesaid, and why an order should not bo passed restraining and enjoining him from disposing of any of his property pending such accounting.” AYhether these several proceedings were all branches of the samo case, or were separate and independent suits., is not disclose! by the record with any clearness, except that it does not appear that the partition proceeding was a separate suit. The other proceedings, however, were ancillary to the relief granted by tbe decree in the original proceeding, and appear to. have been treated by both the counsel for the' parties, and by the court, as a part of that ease. To the receiver’s petition the defendant filed an answer in which he made the following; allegations by way of defense : “That at the time of the separation of the plaintiff and defendant the furniture and household effects at .No. 1328 South Charles Street, the home of this respondent, was valued at four thousand dollars. “That while this respondent was sick in Johns Hopkins Hospital said plaintiff removed from said home silverware, cliina, cut glass, ornaments, linen, draperies, bed clothing, shotgun, Colt revolver, victrola sounding box, bedroom clock, electric iron, camera, hunting outfit, ice box, wardrobe trunk, two cedar trunks, three leather suit cases, two satchels, one $100 Liberty bond, cash $160, one pair opera glasses, pedestal, fancy chair, one clothes hamper, four vacuum bottles, pictures, fancy table cover, rocking ³⁴⁶ chair and electric fan, total valuation of same being $3,300, and said plaintiff has not returned any of said articles or accounted for the same. “That the petitioner, Eugene Frederick, receiver, obtained from William H. Surratt, Harry Wolf, the National Bank of Baltimore, etc., the sum of $1,-577.30 and collected $1,431.20 rents from the tenants of the properties mentioned in said petition, which sums of money have not been distributed. “That since the appointment of said receiver said plaintiff collected rents from the tenants of said properties equal in amount to the said rents collected by this respondent.” And he further alleged that he had paid certain sums for taxes, insurance, repairs, and other expenses on these properties and that he had also kept up the premiums on certain life insurance policies in which his former wife was named as the beneficiary, and he further stated: “That said plaintiff agreed with Judge Gorter and this respondent to eliminate her name as beneficiary, and failed to keep her agreement; that this respondent has paid the premiums on said policy of insurance and another policy of $2,000 up to the present time; both of said policies are in the custody of said receiver. “This respondent admits that on the 25th day of June, 1920, this honorable court passed a decree ratifying and confirming a partition between the plaintiff and the defendant of all the properties held jointly by them, but denies said receiver is now required to state his final account; that said receiver cannot file his final account until said plaintiff returns or accounts for this respondent’s share of said $3,300 worth of household furniture and effects, executes her said agreement concerning said Aetna life Insurance policy, and this respondent receives said two insurance policies.” ³⁴⁷ On December 18th, 1920, the trial of the matters in controversy between the parlies was begun and testimony taken in connection therewith. There is some confusion as to just what that proceeding was.

The record indicates that the attorneys for “Afrs. Anna C. Bracldoin, the petitioner,” and for “Alfred II. Braecklein, the respondent,” were present, although it does not show any petition in which Airs. Braecklein appeal's as the petitioner.

Again the court said at the beginning’ of the hearing: “The matter before mo today is the petition of the receiver filed the 8th of July, 1920, and the answer thereto,” hut later he said: “AVhat is before me is whether or not the decree has been complied with. That is what 1 am investigating this morning, and when I see that what had to he done under that decree by both parties, has been done, I will deal with the receiver, who is an officer of the court, hut the officer of the court may or may not he in a position to do what he is directed to do until I see whether these two parties have done what they are called upon to do under this decree,” while in the court’s opinion it is recited that the testimony was taken under the petition of the receiver. ATo exception was taken, however, to the form of the proceeding, and it ivas treated throughout by counsel for the respective parties as a proceeding to ascertain, declare and protect the rights of the parties to the divorce proceeding as fixed by the decree passed therein, and it was so treated by the court in its decree. In that decree the court ascertained and declared that there, was due by Alfred LI.

Braecklein $1,026.67 on account of the furniiure and $1,281.63 on account of rents collected by him from the properties for which he had failed to account. In doing that the court undertook to finally dispose of all the rights and interests of the parties to the original controversy in- respect to the property referred to in the divorce decree, in order that there might be an end to the litigation between them. Such an intention was in harmony with the policy and spirit of the law as administered in courts of chancery and should not he frustrated unless it ³⁴⁸ conflicted with some established legal principle or deprived the parties or either of them of substantial rights. The appellant contends, however, that the decree, should not have been passed, first, because, since Mrs. Braecldein was not a party to the petition immediately before the court, it had no power to determine in that proceeding the indebtedness of Dr. Braecldein to her, and especially that it could not determine his indebtedness to her on account of the furniture which under the divorce proceeding was to be equally divided between .them, and second, that even if it had the power to determine these questions, that the decree was contrary to the evidence in the case.

The proposition first stated is not free from difficulty. The receiver, as such, had nothing to do with the furniture. He was appointed to take over and manage certain real estate, and to collect “all the rents, issues and profits arising therefrom,” and it was in connection with that duty that he filed the petition for an accounting now under consideration, and in which he asked that Braecldein be required to, account for certain rents. The orderly practice upon such a petition would have been to have determined as a preliminary question whether the respondent ought to account, unless the right to an account had been admitted or concluded by some prior order or decree:, for, as was said in Neale v. Hagthrop, 3 Bl. 561 : “The plaintiff’s title to relief is obviously and necessarily the first and preliminary question to be decided, for it would be idle to go into any account of rents and profits, or to ask for or to consider any discovery so made, if the plaintiff is not entitled to relief in some one form or other, according to the nature of his case, since noi case can be sent to the auditor with directions to state an account in any way, unless it be first shown that the plaintiff is entitled to relief; nor can account or discovery be directed in any case but as ancillary to a previously ascertained or admitted right to relief.” 1 C. J. 642.

And since the duty of the appellant to account to his former wife had been fixed by the divorce de“ ³⁴⁹ cree, and to the receiver by the decree appointing the receiver, and as there could be no question as to the respondent’s duty to account, the court was warranted in proceeding at once to determine the state of the accounts between the parties, because it was needless to go through the form of determining again what it had already decided. While the usual practice in such cases is. to refer the case to an auditor for the statement of an account, yet the court may itself take the account without, a reference. 1 C. J. 644;