Loeber v. Loeber

Fowler, J., delivered the opinion of the Court. This is the second appeal growing out of the litigation between the appellant and the appellee, and the question now presented is alleged to be a Federal one. There are other questions argued and suggested in the elaborate brief filed by the appellant, but we think they have been already disposed of by the opinions of this Court in the former appeal, and on the motion for rehearing thereof. In order to ascertain the question presented for our consideration, we shall state briefly the history of the cause which resulted in the decree now complained of.

J. Henry Schroeder, administrator of Catherine Loeber, filed a bill in the Circuit Court No. 2 of Baltimore City, praying that her husband, John Loeber, the appellant in this case, should be decreed to pay into Court a sum of money amounting to $8,000, which was claimed as part of her estate, or that it might be declared to be a lien on certain real estate belonging to the appellant, and for general relief. The appellant here, who was defendant and appellee in the case just mentioned, answered and excepted to the bill in that case, and it was dismissed by the lower Court, on the ground that the appellee here, who was the sole defendant and appellant in the former case, as administrator, had no interest in that litigation. He then appealed ³⁴⁹ from the decree dismissing his bill, and this Court reversed that decree, and entered a decree in his favor, as administrator of Mrs. Loeber, for $8,000. A motion was filed for re-argument, and it was suggested, as one of the principal grounds for said motion, that this Court must have overlooked the fact that the contract upon which they had undertaken to decree had not been alleged in the bill.

But we held, overruling the motion, that “ it was no matter whether the averments of the bill cover the case proved in the evidence or not, we are obliged to decree according to the matter established by the proof.” And for this position we relied upon section 34, of Article 5, of the Code, which is a codification of the Act of 1832, chapter 302, section 5, as interpreted by this Court for more than half a century. That provision, so far as it relates to the question we are considering, is as follows: “On an appeal from a Court of equity, no objection to the competency of a witness or the admissibility of evidence * * * shall be made in the Court of Appeals, unless it shall appear by the record that such objection was made by exceptions, filed in the Court from which such appeal shall have been taken.” In the case of Harwood, et al. vs. Jones, 10 Gill & Johns., 419, which was decided in 1839, Dorsey, J., in delivering the opinion of the Court, used this language: “The decree of the County Court, it is said, must be reversed on account of the variance between the allegations of the bill and the proof in the cause. Whether there be such variance or not we have deemed it unnecessary to inquire, because, according to our interpretation of the fifth section of the Act of 1832, chapter 302, it is immaterial whether there exists such variance or not.” This construction of the provision of our Code referred to, has been recognized and adhered to in a number of cases which are cited and relied upon by Bryan, J., who delivered ³⁵⁰ the opinion of this Court on the motion for reargument made by this appellant in the case of Schroeder, Adm’r vs. Loeber, 75 Md., 195. A final decree having then been entered in this Court in favor of the appellee, as administrator of Mrs. Loeber, he caused an execution to be issued thereon, returnable to the Circuit Court No. 2 of Baltimore City, and upon its return there, a motion was filed by the appellant, Loeber, to quash the writ, because both the decree and the writ are void.

And, as we understand it, the contention is that the decree (and of course the writ of execution) is void because the Act of Assembly (Code, Art. 5, sec. 34,) as interpreted by this Court, is in violation of that part of the fourteenth Amendment of the Constitution of the United States, which declares that no “ State shall deprive any person of property without due process of law.” And it was very earnestly contended that this provision of the Code, as construed, is liable to this objection, because by its authority this Court undertook to decree upon a matter not alleged in the bill. We shall confine our attention to this question, all the other questions suggested or discussed by the appellant on this appeal, having been, as we have said, fully disposed of heretofore on the former appeal and motion for re-hearing. After quoting the definition of “due process of law” when applied to judicial proceedings as defined by the Supreme Court of the United States in Pennoyer vs. Neff, 95 U. S., 733 , namely, that it means “a course of legal proceedings according to those rules and principles which have been established in our systems of jurisprudence for the protection and enforcement of private rights,” a number of cases of high authority were quoted, to give emphasis to the long established rule that a