Penniman v. Miners & Merchants Bank

Briscoe, }., delivered the opinion of the Court. P. Clarence Barnes sued the Miners and Merchants Bank of Lonaconing, a corporation of the State of Maryland, in the Superior Court of Baltimore City on two notes of $5,000 each, one signed by a certain John H. Garbaugh and the other by E. H. Glidden. The notes were endorsed by the payee, the City Trust and Banking Company of Baltimore, and duly assigned to the plaintiff. The defendant corporation was a stockholder in the City Banking Company, and owned at the time of the suit five hundred shares of its capital stock of the value $10 per share.

The declaration alleges that the banking company is insolvent and in the hands of receivers, and the suit was brought against the defendant, as stockholder, to recover its liability, under the Act of 1892, ch. 109, for the indebtedness due from this company to the plaintiff. It appears from the record that on the 15th of September, 1903, a judgment by confession was entered in favor of the plaintiff for the sum of $10,000, and on the same day judgment was entered satisfied by order of the attorneys for the plaintiff. Subsequently, on October 21st, 1903, the defendant corporation filed a petition in the Superior Court of Baltimore alleging the payment of the judgment, and asking leave to withdraw the notes in order to file them as claims against the City Banking Company. An order was passed allowing the withdrawal of the notes upon leaving copies; they were afterwards withdrawn from the case, and filed in Circuit Court No. 2, of Baltimore City.

On the 3rd of March, 1904, the appellants as receivers of the City Trust and Banking Company filed a petition in the case wherein judgment had been rendered alleging in substance that they are entitled to have surrendered to them the two notes filed in the suit, as an asset of the City Trust and Bank ⁴⁵⁷ ing Company, and that the defendant corporation be required to return the notes to Court, and they be surrendered upon their return to the appellants as an asset of the trust company. To the petition thus filed, the defendant corporation demurred, and from an order of Court sustaining the demurrer, this appeal has been taken. The appellee has submitted a motion to dismiss the appeal and as it must prevail, there will be no necessity to consider the questions sought to be raised on the record. The grounds for the motion are, (i) because the appellant is not and never was a party to the case in which the appeal is taken, (2) because the order of April 18th, 1904, from which the appeal is taken relates solely to a matter within the