Levy v. Steinbach

GIrason, J., delivered the opinion of the Court. It appears from the record in this case that, on the 14th day of November, 1874, the appellant, Samuel Levy, recovered a judgment for one hundred dollars and costs against the appellee in the Court of Common Pleas of Baltimore City, and that the judgment was the same day assigned to Rachel Levy, the other appellant, and that on the 28th day of the same month á fieri facias was issued on the judgment, returnable to the January term, 1875. On the third day of December, 1874, the appellee filed his bill in the Circuit Court of Baltimore City stating the above judgment and execution, and alleging, among other things, that before and at the time of the rendition of said judgment, the appellant, Samuel Levy, was indebted to the appellee in the sum of eighty-two dollars and sixty-six cents for goods furnished him by the appellee, and that the assignment of the judgment by the appellant Samuel Levy to his wife, was made without consideration and in fraud of tlie appellee’s rights, and to prevent him from filing his said claim against said Samuel, and having it set-off thereto. The bill also alleges that he was informed and believed that, at the time of the rendition of said judgment as well as at the time of filing 'the bill, the said Samuel was hopelessly insolvent.

The bill further charges that certain of ²¹⁶ the appellee’s personal property had been seized under the fieri facias and was about to be sold by the sheriff, and prayed that an injunction might be granted to enjoin the sale, and that the appellee’s claim against said Samuel might he set-off, as far as may be, against the aforesaid judgment. The injunction issued as prayed, and on the seventh day of January, 18⁷⁵, the appellants filed then-answer, with a motion to dissolve the injunction. It is unnecessary to notice the answer further 'than to say that it fully admitted the indebtedness of said Samuel to the appellee as stated in the bill of 'complaint, and denied that the assignment was made in fraud of the creditors of said Samuel, but that it was made in consideration of a debt due to his wife, and subject to a lien of fifty dollars due his counsel for services in securing the judgment. Under an order of the Circuit Court proof was taken, which fully establishes the insolvency of said Samuel.

On the 2*7th January, 18⁷⁵, the Circuit Court passed an order overruling the motion to dissolve the injunction and continuing- the same until final hearing. From this order the present appeal was taken, and the only question legitimately before us is, whether there was error in overruling the motion to dissolve, and continuing- the injunction until the final hearing ? The order of the Circuit Court is alleged to be erroneous, not because the appellee had no right to the equitable set-off, nor that Rachel Levy did not take the assignment of the judgment subject thereto, but principally on the ground of alleged defects in the bill and'in the proof of Samuel Levy’s insolvency. We have before stated that the proof clearly shows that Samuel Levy was insolvent at the time of the rendition of the judgment against the appellee, and as late as the 19th of January, 18⁷⁵, at which time the affidavits were filed, and without stopping to inquire whether an allegation in the bill that the complainant “is informed and verily believes that said Levy is hopelessly