Pinkston, Tr. v. Higham

BeunE, C. J., delivered the opinion of the Court. This is an appeal from an order of the Circuit Court for Montgomery County filed June 8, 1960, ratifying and confirm ⁵¹⁵ ing an auditor’s account filed in a suit in equity for an accounting, showing a balance of $1,351.64 to be due from the appellant (original defendant and cross-plaintiff), Jack Pinkston, “Trustee for Holiday Homes, Inc.,” to the appellee (original plaintiff and cross-defendant), Richard E. Higham. The order for appeal states that the appeal is from the above order of June 8, 1960, “as well as all previous adverse rulings of the Court in this Cause.” It would be profitless to review all of the voluminous and largely repetitious pleadings of the appellant. Some of them, we may add, appear to have been filed in disregard of Md. Rule 320 d 1 (b), requiring leave of court for amendments; four were filed after the order of June 8, 1960, and are not properly before us.

Somewhat boiled down, the questions raised by this appeal relate to: (a) the jurisdiction of the trial court; (b) the procedure followed with regard to the auditor’s hearing and report; and (c) the findings adverse to the appellant. The appellant makes a great point that he is “Trustee for the Benefit of the Creditors of Holiday Homes, Inc.,” and not “Trustee for Holiday Homes, Inc.,” though he perforce admits having sometimes used the abbreviated form of title which, he says, was merely a matter of convenience. So far as the disposition of the present appeal is concerned, the question of the correct title seems of little moment. This is the second case in which matters growing out of the deed of trust below mentioned have reached this court.

In the first, Briley v. Pinkston, 215 Md. 417 , 136 A. 2d 563 , the salient facts with regard to the execution by Holiday Homes, Inc., and Holiday Homes Manufacturing Co., Inc., of a deed of trust dated March 25, 1955, for the benefit of their creditors, to Jack Pinkston, as trustee, are set forth by Judge Henderson ( 215 Md. 422 -423). These companies were Delaware corporations which had offices in Washington, D. C. They entered into contracts for the sale of prefabricated houses, assembled them at a plant in Prince George’s County, and did almost all of their construction work in Maryland; and about their only assets were contracts for unfinished build ⁵¹⁶ ings in various stages of completion, on which payment could not be obtained until full completion. The deed of trust contained a provision purporting to authorize the trustee to operate the business. Higham had entered into a contract for the construction of a house on his lot at Mayo, in Anne Arundel County, but little progress had been made when financial difficulties overtook the Holiday Homes corporations and the deed of trust was executed.

The contract price was $6,785.00, of which $800.00 had apparently been paid as a down payment. As a result of negotiations between Pinkston and Higham (following a circular letter from Pinkston as “Trustee for Holiday Homes, Inc.”), it was agreed that Pinkston should complete construction of the house, with some changes in specifications under Higham’s contract with Holiday Homes, Inc., expected to reduce the cost, for a price which Pinkston’s construction man said was $5,659.23. Under this arrangement Higham paid Pinkston $4,200.00. After several weeks of construction work, when the house was still far from complete, Pinkston advised Higham that it could not be completed for the price contemplated.

Higham asked for an accounting of the monies already paid; Pinkston claimed to have paid out more than $5,000.00 on account of the Higham job. Apparently by mutual consent, Pinkston ceased work on the house and Higham took over its completion. On October 14, 1955, Higham filed his bill for an accounting in this case against Pinkston, Trustee for Holiday Homes, Inc., Pinkston, describing himself as “Trustee for the Benefit of the Creditors of Holiday Homes, Inc.,” filed an answer and a cross-complaint. The latter was promptly answered by Higham.

In January, 1956, the case was referred to an auditor, but nothing more appears on the docket until October 9, 1956, when Pinkston filed a motion to dismiss based upon alleged lack of equitable jurisdiction. No ruling seems to have been made on this motion at that time. On February 13, 1957, on petition of Higham, the court entered a show cause order requiring Pinkston to appear and account before the auditor on March 4, 1957. On that day Pinkston filed a “plea to the ⁵¹⁷ jurisdiction” (not then acted upon) alleging that the “trusteeship” was domiciled in Prince George’s County and seeking either a dismissal of the suit in Montgomery County or its transfer to Prince George’s.

For the moment we shall confine our attention to jurisdictional questions, as to which the appellant filed some further pleadings. The only one of these which we shall mention specifically was the last, a motion docketed May 5, 1960, to file an amended plea to the jurisdiction. This was overruled on May 27th. This action seems to have been confirmed by the final order filed June 8, 1960.

It seems useless to enumerate all of the pleadings setting up the defendant-appellant’s objections to jurisdiction, since all of them were either rejected explicitly by the order of June 8, 1960, or were rejected by necessary implication from the ratification of the auditor’s account therein contained. We may note at once and really parenthetically that the appellant does not contend in his brief that the overruling of his motion to dismiss on the ground of alleged lack of equity jurisdiction was erroneous. (The motion is not even printed in the appendix and has no apparent merit. (Miller, Equity Procedure, § 721.) We regard it as abandoned.) We find untenable the appellant’s contention that the Circuit Court for Montgomery County was without jurisdiction over this case.

He cites three cases in support of his argument: Withers v. Denmead, 22 Md. 135 ; Cone v. East Baltimore Land & Bldg. Soc., 40 Md. 380 ; and Woodcock v. Woodcock, 169 Md. 40, 50 , 179 A. 826 . All three recognize the rule that where each of two courts has concurrent jurisdiction, the court in which suit is first instituted is entitled to retain jurisdiction and that the second court is without power to interfere. The Withers and Woodcock cases applied the rule; the Cone case held it inapplicable where the proceedings in the first court consisted of no more than the filing of an ex parte petition upon which no action had been taken prior to the institution of the suit in the second court.

None of these cases, if otherwise applicable (which we do not decide), could possibly aid the appellant for the simple reason that not even his ex parte application for the assump ⁵¹⁸ tion by the Circuit Court for Prince George’s County of jurisdiction over the administration of the Holiday Homes deed of trust was so much as filed, nor was any action thereon taken, until May, 1957, which was about a year and a half after the institution of the present suit. Up to that time Mr. Pinkston had filed the deed of trust for record in Prince George’s County and had engaged in some litigation as trustee both in that County and in the District of Columbia. (See Briley v. Pinkston, supra.) Such activities were wholly inadequate to throw around his shoulders a mantle of immunity from suit outside of Prince George’s County. Nor are we informed of any other circumstance which would deny jurisdiction to the Montgomery County Circuit Court.

Mr. Pinkston was a resident of that County. The letterhead on which he circularized Mr. Higham and other customers of Holiday Homes showed his office to be in Montgomery County and invited communication with him there. He was acting, he claims, by virtue of the deed of trust. Certainly he was not acting by the authority of any court, when he made the agreement with Mr. Higham.

(Indeed, to us, it is at least not apparent that any court if exercising jurisdiction over the Holiday Homes trust, would have approved the agreement if asked to do so.) We note that among the items for which Mr. Pinkston claimed reimbursement was a telephone bill giving the number of his office in Silver Spring, Montgomery County. It is difficult to suppose that such a charge would have been incurred in connection with the Holiday Homes trust unless it were being administered at least in part in Montgomery County. If the “domicile” or seat of the trust were important, the location of the trustee’s office would seem a pertinent factor in determining the question. 2 Beale, Conflict of Laws, § 297.1, p. 1023. The location of the “plant” in Prince George’s County seems to have been of little importance in the construction of the Higham house, which was located in Anne Arundel County.

The rules as to the place where a defendant may be sued applicable at law (Code (1957), Art. 75, § 75) are also generally applicable in equity. Evans v. Zouck, 172 Md. 12, 16 , ⁵¹⁹ 190 A. 523 ; Zouck v. Zouck, 204 Md. 285, 291 , 104 A. 2d 573 . It is apparent, we think, that Mr. Pinkston was sued in the proper county under those rules; but even if he had not been, his voluntary appearance would have cured such a defect, and there is no question as to such appearance both through his answer and his cross-bill long before he sought to attack the jurisdiction of the Circuit Court for Montgomery County. See Evans v. Zouck, supra.

The mere fact that the Holiday Homes corporations, or one of them, may have had a plant in Prince George’s County would not bar a suit elsewhere against the trustee, even assuming that he had title to it (as he did not prior to May 4, 1957, under Briley v. Pinkston, supra). See Dorsey v. Omo, 93 Md. 74 , 48 A. 741 , and comment thereon in Evans v. Zouck, supra,