Brown v. Kemper ex rel. Kolbe

Weisel, J., delivered the opinion of this Court. This appeal is from an order perpetuating an injunction. After the injunction itself had been granted and the writ served, the complainant below proceeded, under an interlocutory order, obtained by reason of the failure of the defendant (the appellant) to appear to the subpoena, to take proof ex parte in support of her bill, and upon its return, to obtain the final order appealed from, perpetuating the injunction. We are therefore to examine this proof and the bill of complaint, to ascertain whether there was error or not in this final order.

The proof simply verifies the facts alleged in the bill, that Anna Barbara Kemper, the complainant, (suing by a next friend) is the wife of Henry Kemper, to whom she was lawfully married in July, 1859 ; that she is the grantee in the deed exhibited with the bill, and is still the owner of the property thereby convoyed ; that she is the identical person named in the suit at law of Jasper Brown against Henry Kemper and Mary Barbara Kemper, his wife, and that she was inaccurately summoned in said suit by said name of Mary Barbara Kemper ; that she and her husband were still living and resided in Baltimore county. The exhibits with the commission were the deed of the city of Baltimore to Anna Barbara Kemper, dated 11th February, 1863, for certain real estate in Baltimore city in fee ; and the record of a suit at law in the Superior Court of Baltimore City, in which Jasper Brown (the appellant) was plaintiff and Henry Kemper and Mary Barbara. Kemper, his wife, were defendants, which resulted in a judgment upon an inquisition, on a judgment by default for want of plea ; and a fieri facias was issued thereon and levied on the property conveyed by the said deed. A motion to strike out the judgment was entered after the issuing of the fi. fa., but this seems to have been abandoned.

The record does not show any further proceeding upon it. The next step ⁶⁷² taken was the hill of complaint, filed on hehalf of Mrs. Kemper, in the Circuit Court of Baltimore City, praying for the writ of injunction against the said Brown and the sheriff, restraining them, &c., from levying the fieri facias on said property to satisfy said judgment; and for a subpoena to answer. The injunction was ordered and issued the same day. The allegations upon which the injunction was granted, were that in the suit at law it was falsely alleged that the plaintiff had sustained damages through the tort and wrongful act of Henry Kemper, the husband; that a judgment was obtained by default, against both'; that this and the subsequent proceedings by inquisition and judgment thereon, resulted from the gross negligence and inattention of the attorney employed, hut without any agency of the complainant; that the judgment as to her is a nullity and without legal effect; and that the property levied on under the fi. fa. is her sole and separate estate, and the title thereto will be seriously affected and clouded, and its value impaired by the proceeding under it.

The record of the judgment at law was not exhibited with the hill, but only the docket entries, which did not disclose the true nature of the suit. It appears from the record, put in evidence under the commission, that the defendants, husband and wife, were jointly declared against, as having committed a wrong, from which the damages claimed, resulted. In an action for a tort by a feme covert, during coverture or before coverture, the husband and wife must be jointly sued. 1 Chitty’s Pl., 81, 92. The judgment was rendered against them jointly.

And although it was a judgment by default; and the amount found by inquisition, the finding was as effectual as a verdict found upon issues.. If injustice he done, it