Fersner v. David Bradley & Co.

Boyd, J., delivered the opinion of the Court. The appellant obtained a preliminary injunction against the appellees to prohibit them from proceeding with an execution issued on a judgment obtained in the Circuit Court for Allegany County, by David Bradley and Company against Lewis F. Fersner, and Sebering J. Phelps, trading as Fersner and Phelps. The defendants answered and ⁴⁹⁰ made a motion to dissolve the injunction. That motion was set down for hearing on the 6th day of May, 1897, and on that day exceptions to the answer of David Bradley and Company were filed.

The exceptions were overruled, the injunction was dissolved and the bill of complaint dismissed. The learned Judge below stated in his opinion that “no objection was made to hearing the case at the instance of the defendant upon bill, exhibits and answer, in fact it was submitted by both parties.” It is contended by the appellant that there was a misapprehension on the part of the Court and that it was not intended to submit the motion to dissolve, but only the exceptions to the answer, but we must be governed by what appears in the record. If there was that misapprehension on the part of the Judge below, as claimed by the appellant, application should have been made to him to have the alleged error in that respect corrected, but instead of adopting that course an appeal was entered from the decree dissolving the injunction and dismissing the bill without any further proceedings in that Court. The statement of the Judge is therefore conclusive and must be assumed by us to be correct.

Maryland Ice Company v. Arctic Ice Company, in list of unreported cases, 80 Md. xviii ( 30 Atl. Rep. 633 ). We being required to assume that the motion to dissolve was submitted on bill, exhibits and answers, we must determine from them whether the plaintiff was entitled to a continuance of the injunction. The bill alleges that an execution had been issued on the judgment of David Bradley and Company against Fersner and Phelps, and levied upon certain property of the plaintiff, acquired from the said Lewis F Fersner by purchase on the 26th day of May, 1895, by a bill of sale filed as an exhibit; that the judgment was illegally and improperly rendered, as there never was such a firm ás Fersner and Phelps, and Phelps was not summoned but was returned “ non est” by the sheriff.

It admits that Lewis F. Fersner was duly returned summoned, and as he was the person through whom the plain ⁴⁹¹ tiff claims an interest in the property levied on, we cannot understand how the fact that Phelps was not summoned can in any way concern the plaintiff. If the individual property of Phelps should be levied on under an execution issued on that judgment, the Court may be called upon to inquire into that question, but without stopping to inquire how far a third person can thus collaterally attack a judgment, there is nothing in the bill from which it can be determined or even inferred that Lewis F. Fersner was not bound by the judgment, but on the contrary it alleges he was summoned. David Bradley and Company could therefore properly proceed to judgment against him (Loney v. Bailey, 43 Md. 10 ), and as the appellant claims the property levied on through him, it is not material to the case whether Phelps was summoned or whether he was a partner of Lewis F. Fersner. The only remaining question that we need pass upon is whether the property levied upon was shown to belong to the plaintiff.

The answer denies that the plaintiff at the time of the levy owned or had any interest in it. The only evidence of any interest the plaintiff had in it was the bill of sale. The bill of complaint expressly relies on it for his title. It alleges that the execution was levied upon the “ property of your orator acquired from the said Lewis F.' Fersner by purchase on the 26th day of May, A. D. 1895, by bill of sale herewith filed ”—that date being prior to the time the judgment above spoken of was rendered^ It is not alleged that