Chappell v. Clark

McSherry, C. J., delivered the opinion of the Court: This record brings up two appeals from two orders of Circuit Court No. 2, of Baltimore City. The proceedings which resulted in the passage of these orders, were commenced by a bill of complaint filed by the appellees against the appellant. The bill asked the Circuit Court to assume jurisdiction of a certain trust, and it prayed that Thos. C. Chappell be required to give bond as trustee, and that he be restrained from receiving or investing any of the funds of the trust estate until he first filed a duly approved bond.

The trust is alleged to have arisen under the will of Philip S. Chappell. An extract from the will is quoted in the bill of complaint, but a certified copy of the will was not filed with the bill though leave was asked to file one later on. On the same day that the bill was filed the Court took jurisdiction of the trust and passed an ex-parte order requiring the trustee to give bond in the sum of one hundred thousand dollars and granted the injunction prayed for. The appellant demurred to the bill and then entered an appeal from the order granting the injunction and requiring the bond.

It is apparent that the proceedings were hurriedly carried through, and the well-known litigious character of the appellant may have induced the Court to act with unusual promptness; but there was an error commited in directing any process to be issued before the exhibits referred to in the bill had been actually filed. The fourth equity rule, which is now the statute law of the State, (Code, Art. 5, sec. 120), provides that “No order or process shall be made or issued upon any bill, petition or other paper, until such bill, petition or other paper, together with all the exhibits referred to as parts thereof, ¹⁰⁰ be actually filed with the clerk of the Court.” In the face of this explicit declaration it was obvious error to pass the order requiring a bond and directing an injunction to be issued. The order must therefore be reversed, but as the exhibit has been now filed a new writ may be issued as soon as the record reaches the Court below. By a petition filed in the cause two days after the bill had been filed, it was alleged that a co-partnership of which the petitioner was the surviving member, had some five