Hopkins v. State ex rel. Gonso

Grason, J., delivered the opinion of the Court. It appears from the record in this case that George Gonso obtained a judgment against William L. Hopkins, on the ⁵¹¹ second day of December, 1871, in the Court of Common Pleas, for $743.13, with interest thereon till paid, and $54.32 costs ; and that on the same day Hopkins filed a bill of complaint in the Circuit Court of Baltimore City, against George Gonso, Samuel Lidie and Albert Ritchie, to whose use the judgment had been entered, and L. C. Jones, a partner of Hopkins, praying for an injunction against Gonso, Ritchie and Lidie, to enjoin them from further prosecuting said suit, and also a suit then pending, which had been instituted by said Gonso against the firm, of Hopkins & Jones. On the same day said Circuit Court passed an order that an injunction issue “ as prayed in said bill," on the complainant filing a bond in the penalty of $1500, with security to he approved by the clerk of said Court. A bond was accordingly prepared by the attorney of the complainant, and was executed by the complainant and Peter Hew, was approved by said clerk and filed and the injunction issued, and was served on the parties.

Answers were filed, and evidence taken; and the injunction was dissolved on the 23rd day of April, 1872. Suit was then instituted on the injunction bond in the Court of Common Pleas, which resulted in a judgment for the plaintiffs, the present appellees; and the defendants appealed. There was a demurrer to the narr., which was overruled, and during the progress of the trial the appellants took ten exceptions to the rulings of the Court with respect to evidence, and one to the Court’s rulings in granting the appellees’ prayer and in rejecting all the prayers of the appellants except their sixth, which the Court granted. There was also a motion in arrest of judgment, which was overruled.

The demurrer and the first, second, second and a half, third and fifth prayers, and the motion in arrest, are all based on a supposed insufficiency of the injunction bond, as well as of the writ of injunction and a variance between ⁵¹² the two, and between the narr. and bond; and it was contended that the bond was so defective that no recovery could be had upon it, and that the writ of injunction did not restrain the appellees from enforcing their judgment by execution. The narr. describes the suit in which the injunction issued as brought by William L. Hopkins against George Gonso, Albert Ritchie, Samuel Lidie and Louis C. Jones, while the injunction bond in its recital of the case in which the injunction was about to issue, describes it as one in which William L. Hopkins is complainant and George Gonso, Albert Ritchie, — Lidie are defendants; omitting to state Lidie’s first or Christian name, and omitting the name of Louis C. Jones altogether, and its condition is to save harmless the defendant, omitting. the s at the end of the word defendant. The narr. properly and correctly describes the suit in which the injunction issued, it being a suit in equity against George Gonso, Albert Ritchie, Samuel Lidie and Louis C. Jones. The bond refers to the suit; the order of Court directing the injunction to issue, directs it to issue “as prayed in said bill,” and the writ of injunction itself refers to the bill, and enjoins the three parties against whom the bill prayed it might issue, and gives their full names.

It was also proved that the bond was filed in the equity case of William L. Hopkins vs. George Gonso, Albert Ritchie, Samuel Lidie and Louis C. Jones, in the Circuit Court of Baltimore City, and that there was no other cause pending in said Court between the same complainant and the same defendants or either of them, and that the bond was prepared and the blanks filled up by Hopkins’ attorney in that suit, who is also the appellants’ attorney in this. In the case of Frantz vs. Smith, 5 Gill, 285 , an appeal bond recited that the judgment was for the sum of twenty-five dollars, when, in fact, it was for twenty-five dollars and interest. The bond was filed in the suit in question. There was no other suit between the same parties, and the bond ⁵¹³ had heen prepared by the obligors, and it was held, that the judgment was sufficiently described and that, if there was any variance, the obligors could not be permitted to avail themselves of errors in the bond, which they themselves had prepared.

In 1 Term Reps., 239, the declaration stated that the precept was directed to the Mayor, and the precept produced was directed to the Mayor and Burgess, and it was held sufficient. In 2 Camp. R., 525, the declaration stated that the fi. fa. was directed to A. B. and C. D., sheriffs of Middlesex, and the writ produced was directed to the Sheriff of Middlesex generally, and it was held to be no variance. In the case of State, use of Wilcoxen vs. Wooton, 4 H. & J., 21 , the action was brought on an administration bond, which recited that the two obligors first named, were the administrators of George Wilcoxen, and conditioned for the faithful administration by them of the personal estate of said George.

The name of the intestate was not George, but Anthony, and the only evidence offered to prove the amount of assets in the hands of the administrators was the inventory of the goods and chattels of Anthony Wilcoxen. Parol evidence was offered to show the name of the intestate, but it was rejected, and upon an appeal to this Court the ruling of the Court below was reversed on the ground that the bond was really given by the administrators of Anthony Wilcoxen, and the variance was a mistake committed by the obligors themselves. In 4 Wend., 675 , the suit was against a Sheriff for money collected on an execution, and the declaration stated that the execution directed him to levy $242.16 and his fees, and the exemplification of the execution offered in evidence showed that he was directed to levy $242.16, with interest from May, 1826, and his fees, and the Supreme Court of New York decided that “the variance between the execution produced in evidence, and that stated in the declaration was not material. The indorse ⁵¹⁴ ment, so far as it is set forth is accurate, and the variance is merely in the omission to aver that the Sheriff was directed to levy interest as well as the damages and costs.

It could raise no douht as to the identity of the writ.” See also Jenkins & Hewes vs. Hay, 28 Md., 559 , and Wallis vs. Dilley, 7 Md., 248 . In the case of Smith vs. Eubanks, 9 Yerger, 22, the suit was upon an indemnity bond given to indemnify the plaintiff from liability on a note for $ 129, and the narr. averred that suit had been brought against the plaintiff on said note and judgment recovered against him for the sum of two hundred dollars and fifty dollars costs, which he had paid. The record of the judgment produced showed that the amount recovered was different from that stated in the declaration, and its admission in evidence was objected to on the ground of variance, hut the objection was overruled ; and upon appeal the Supreme Court of Tennessee said: “ It is true there is a variance in the amount of the judgment set forth in the pleadings and that shown by the record, which would have been fatal, if the record had been the foundation of the suit. * * * * But in this case, the bond of indemnity is the foundation of the suit. Indemnification, or no indemnification, is the question in dispute, to which the judgment is mere matter of inducement.

When matter of fact is the foundation of an action and matter of record inducement thereto, it has always been held that a slight variance in the description of the record is not fatal.” But it is contended that the writ of injunction which was issued was inoperative to restrain the appellees from prosecuting their writ of execution against the appellant, Hopkins, because the writ, by its terms only enjoined them from prosecuting certain suits against the firm of Hopkins & Jones. It has been already shown that the declaration correctly states the equity proceedings in which the injunction issued. The bill in that case was filed against Gonso, Ritchie, Samuel Lidie and Louis O. Jones, ⁵¹⁵ and it prayed process against all of them, and that they might he required to answer the allegations, and prayed that an injunction might issue against only three of them, to wit: George Gonso, Albert Ritchie and Samuel Lidie, to enjoin them “ from all further proceedings in the suit of said Gonso against your orator, and the suit of said Gonso against Hopkins and Jones, and that each of the defendants may be restrained by injunction.” Jones was not a party plaintiff in either of said suits, and therefore no injunction was prayed for or was issued against him. The Court ordered the injunction to issue “as prayed in said bill.” The writ itself in its recitals refers to the bill of complaint exhibited in the Circuit Court of Baltimore City against George Gonso, Samuel Lidie and Albert Ritchie “for an injunction to restrain you, and each of you from all further prosecution of certain suits instituted by George Gonso against the firm of Hopkins & Jones, in the Court of Common Pleas, (and which are more particularly referred to in the hill of complaint.”) The parties to the suits were thus expressly referred to the bill of complaint for the purpose of ascertaining what suits were intended to be, and were enjoined, and upon looking at the bill they could not have failed to see that the suit of Gonso against Hopkins, individually, the judgment in which had been entered to the use of Albert Ritchie and Samuel Lidie was covered by the writ of injunction, as well as Gonso’s suit against Hopkins & J ones.

Where the writ of injunction refers to the bill, the latter may be examined for the purpose of ascertaining to what the injunction applies. In Endicott vs. Mathis, 9 N. J., (Equity,) 110, the writ enjoined a suit in which E. M. alone was plaintiff, when the bill prayed for an injunction to restrain a suit in which E. M. and wife were the plaintiffs. There being no suit in which E. M. alone was plaintiff, and no doubt as to the suit intended to be enjoined, the injunction was held to operate on the suit in which E. M. ⁵¹⁶ and wife were the plaintiffs. In Sullivan vs. Judah, 4 Page’s Chan., 446, which was an attachment for violation of an injunction, while the Chancellor stated that the injunction should, in itself, contain sufficient to apprise the party upon whom it is served what he is restrained from doing, without the necessity of examining the