Michael v. Rigler

Offuttt, J., delivered the opinion of the Court. Idle appeal in this case was taken from an order of the Circuit Court for Frederick County, granting a preliminary injunction enjoining the appellant from prosecuting an attachment proceeding instituted by him. against the appellee in the Circuit Court for Carroll County on a judgment of that court, and the question which we are called upon to determine is whether the averments of the bill of complaint, considered in connection with the accompanying affidavit and exhibits, were sufficient to justify the court in passing that order. In dealing with that question we must assume that all the facts properly pleaded in the bill are true. Chesapeake Brewing Co. v. Mt.

Vernon Co., 107 Md. 528 ; Shannon v. Wright, 60 Md. 520 . In substance the facts set forth in tbe bill are as follows: Frank E. Michael, a, resident of Frederick Comity, on October 25th, 1920, sold to Willa E. Bigler an automobile for $ 1,580, of which amount she paid $30 in cash, and for the balance of $1,550, she ga.ve him a promissory note under seal executed by her, Harr).- T. Frizzell, and Helen M. Frizzell, which was in the following form: $1550.00. Daysville, Md., October 25th, 1920. “One day after date, we jointly and severally promise to pay Frank E. Michael, or order, fifteen hundred ¹²⁸ and fifty dollars. Value received, with, interest from date. “And we hereby authorize and empower any attorney of any court of record in the State of Maryland or elsewhere to appear for us in our name before any court or justice of the peace in said State or elsewhere, and confess judgment against ns for the amount due the holder of this note, with costs of suit, attorney’s fee of five per cent, for collection if made on fi. fa., release of all errors, and waiving all stay of execution and right of appeal.

And we and each of ns do hereby expressly waive the benefits of any and all exemption to which we may he entitled under the laws of the State of Maryland, so that all our property may he subject to satisfy the demands of this note or any judgment obtained thereon (and the above waiver is part of the consideration of this note). “And it is hereby agreed that the automobile (Bell make) touring car Mo. 15337, engine Mo. 1423, model. 432, 1920, for which this note is given, shall be and remain tbe property of the said Erank E. Michael until this note is paid in full. (I, Willa E. Bigler, do hereby sell, assign and transfer all my right, title and interest in the real estate and personal property of my late husband, George Bigler, as security herefor.) “Willa E. Bigler. (Seal) “Harry T. Frizzell. (Seal) “Helen M. Frizzell.

(Seal) “Due........ “P. 0., Mt. Airy, Md., Boute Mo. 4.” And to further1 secure him she assigned to Michael all her right, title and interest in the estate, of her deceased husband. Mrs. Bigler then took possession of the automobile and kept it until about October 25th, 1923, when Harry T. Frizzell, one of the makers of the note referred to above, acting at the direction and as the agent of Michael, drove the machine from her premises to a “lonely part of a public road” in Frederick County and there set fire to it and burned it for the purpose of ¹²⁹ collecting! the sum, of $1,550 from the Peoples1 Fire Insurance Company of Frederick, from which Michael had procured a policy of lire insurance on the automobile for that amount to he issued to Mrs. Bigler hut so,endorsed that in ease of loss the insurance would he paid to Michael, who kept the policy. Mrs. Bigler knew nothing of the issuance of this policy and never authorized or r atified it in any way.

On January 28, 1921, Michael caused a judgment by confession to be entered, under the power of attorney contained in their writing obligatory, against Willa A. Bigler, Harry T. Frizzell, and Helen M. Frizzell for $1,574, and on the same day he procured a writ of attachment on that judgment to issue out of that court, and on July 29th, 1921, that writ was laid in the hands of Jesse F. B. Heagy and Guy W. Steele, trustees. GeOrge Bigler, the husband of the appellee, who had died some time before she purchased the automobile, left a small estate, made up of real and personal property. His personal property not being sufficient to pay his debts, his real estate was sold in an equity proceeding in the Circuit Court for Carroll County, in which Jesse F. R. Heagy and Guy W. Steele were appointed trustees to* make the sale, and, in the distribution of the proceeds of that sale, $1,286.38 was allowed to Willa, E. Bigler, the widow of the decedent, and it was that fund which was hound by the writ of attachment so laid in the hands of Messrs, lleagey and Steele, trustees, and except for this fund the appellee had no property of any kind. After the destruction of the automobile the appellant attempted to collect the insurance thereon.

The insurance company, however, refused to pay it, on the ground that the burning of the automobile was a fraudulent act procured by the appellant, and because it was, a wrongful and fraudulent act no insurance can he collected for the loss, of the automobile. Notwithstanding the destruction of the automobile by his agent and at his direction, Michael continued to press the attachment proceeding. Heagy, wbn was the attorney who ¹³⁰ confessed the judgment against Mrs. Rigler, w.as also one of the trustees in possession of the fund attached under an attachment issued on that judgment. The trustees were duly summoned, appeared, and confessed assets to the amount of $1,286.38, -and in ordinary course judgment of condemnation according to the rules of the Circuit Court for1 Carroll County would havé been entered for the condemnation of the assets so confessed at the February term of that court.

Since the judgment was regular, the appellee contended that she had no legal defence to that action and no remedy at law adequate to relieve her from the consequence of the appellant’s fraud and wrong. Upon these facts the appellee prayed fox1 the following relief: “1. That pending and until the determination of the matters and things alleged in this bill of complaint, the said defendant may be enjoined and restrained from tbe further prosecution of the attachment, and tbe proceedings thereunder, now pending in tbe Circuit Court for Carroll County as aforesaid; and “2. That tbe said defendant, bis attorneys, personal representatives and assigns, may be perpetually enjoined from proceeding with the said attachment issued in said Circuit Court for Carroll County as aforesaid, and laid in the hands of the said Jesse E. R. Heagey and Guy W. Steele, trustees in Cause Ho. 5257 Equity as aforesaid. “3.

That the said defendant, his attorneys, personal representatives and assigns, may he perpetually enjoined from proceeding to enforce, or enforcing, by execution, attachment tor otherwise howsoever, the payment of tbe said judgment, or any part or portion thereof, against this complainant, her heirs, personal representatives and assigns. “4. That your oratrix may have such other and further relief as her case may require.” On March 18th, 1922, Michael demurred to the whole bill, and this demurrer, which for the purposes of this appeal may ¹³¹ bo regarded as an answer, sets forth the following objections to the hill: 1 and 4. Want of jurisdiction; 2. That the complainant had a complete and adequate remedy at law; 3.

That the defendant had sufficient property to respond in damages for the alleged wrong; 5 and 10. That the facts set out in the hill are not sufficient to warrant relief in equity; 6. That it calls upon the defendant to answer criminal charges; 7. That it does not embrace the whole subject matter; 8.

That it was barred by laches; 9. That there was a non-joinder; 11 and 12. That it was vague and in conflict with the exhibits; 13. That there was a failure to file proper exhibits; 14.

That it was multifarious. And after filing the demurrer this appeal was taken. Upon this record the only question before ns is whether on the facts stated in the bill the court was warranted in passing the order appealed from. Those facts briefly re-stated are, that Michael sold to Mrs. Rigler an automobile' for $1,530 of which amount she paid $30 in cash and gave her note for the balance, in which note she agreed that until the note was paid the title to the machine should remain in Michael.

Beforei the note was paid Michael through his agent, for his own fraudulent purposes, and without the knowledge or assent of Mrs. Rigler, destroyed the automobile which was the whole consideration for the note. Hot-withstanding that action he attempted to collect from Mrs. Sigler, Ihrough an attachment issued on a judgment entered under a power of attorney contained in thei note, the entire sum which Mrs. Rigler had in that note promised to pay. The appellant’s contentions are: (1) That these facts are not sufficient to entitle the plaintiff to any relief in équity; (2) that she had ian adequate remedy at law'; (3) that the court was without jurisdiction because the Circuit Court for Carroll County in which the attachment proceeding was pending had exclusive jurisdiction of the subject matter of the hill; (4) that necessary exhibits were not filed with, the bill, and (5) that the hill failed to join necessary parties to the suit. There ¹³² were other1 objections suggested, but those we have stated include all that are entitled to serious consideration in. this Court.

The first point, that the bill failed to state a case for equitable relief is so< closely connected with the second proposition, that the appellee had an adequate remedy at law, that they will b© considered together. If -the complainant on the facts stated had a full, complete and adequate remedy at law, a court of equity would have no jurisdiction in the premises and could not intervene (High on Injunctionssec'. 175; 23 Oyc. 979; Hiller’s Equity, sec. 571), and the first step* therer fore in determining the court’s jurisdiction will be to ascertain just what remedies at law the complainant had. It is not contended, and there is nothing in the record to show, that there was any defence against the judgment available to the appellee when it was entered. It was regular on its face and entered pursuant to the authority contained in an agreement, made by a, competent person, not induced by fraud or covin, and unaffected by any element of surprise, mistake, or illegality.

Eor is it suggested that there is any newly discovered evidence which could have been offered when that judgment was entered. Under such circumstances, -there was no way or method by which a court of law could have affected the status or the validity of that judgment. Poe’s Practice, sec. 388, et seq. Its purpose was to serve as collateral security for the payment of the balance due on the automobile and the appellee in her bill did not deny that for that purpose it was valid and proper.

Her objection was not to the manner in which the judgment was entered, 'but to the use to which it w-as put after it w¡as entered. If the appellee could not strike down the judgment itself by application to the court of law which gave it, a fortiori she cannot set up in that court, as- a defence to the attachment issued on it, facts which would render it inequitable to enforce the judgment but which did not exist when it was entered. Otherwise the court which rendered it would hold that its- own valid and perfect judgi ¹³³ ment could not be enforced. We do not think, therefore, that the judgment, or the attachment was open to á direct attack in the Circuit Court for C'arroll County and that, so far as stopping the .progress of the execution of the judgment for the reasons relied upon by her in this; case, the appellee had no adequate legal remedy.

Hor does the fact, If it be sucb, tbat she could have sued the1 appellant at law for the fraud charged, affect the jurisdiction of the court, in view of section 84, article 16, Code Pub1. Gen. Laws of Maryland, which provides that “no court shall refuse to issue a mandamus or injunction on the mere ground that the party .asking for the same; has an adequate remedy in damages., unless; the party against whom the same is asked shall show to; the Court’s satisfaction that he has property from which the damages, can be made, or shall give a bond in a penalty to be fixed by the court, and with a surety or sureties approved by the court, to answer all damages and costs; that he may he adjudged by any court of competent jurisdiction to pay to the party asking such mandamus or injunction by reason of