Pugh v. Waclawski

Prescott, J., delivered the opinion of the Court. This appeal is from an order that sustained a demurrer to, and dismissed, appellant’s amended petition to amend an enrolled decree of the Circuit Court No. 2 of Baltimore City that dismissed his bill of complaint. The bill of complaint, filed June 9, 1954, prayed the court to assume jurisdiction, to require an accounting and to remove the old, and to appoint new, trustees. Plaintiff alleged he was practically the sole stockholder in three closely held corporations ; through the media of these and individually he bought land sites, secured construction mortgages, and bought and sold houses; the corporations became indebted to him; both he and the corporations became financially involved; in June of 1950, he turned over, by deed, to the defendant trustees the books, records and assets of one of the corporations and certain of his personal property for the benefit of named creditors; and the ³⁴⁸ defendants had been guilty of conduct and manipulations that plaintiff contended amounted to fraud.

All defendants filed answers in which they set up certain defenses, namely: laches; lack of beneficial interest in the plaintiff to the assets transferred, in that they were corporate assets and any right of action belonged to the corporations or to their successors; that a necessary party defendant was not named; and res judicata. They further denied many factual allegations in the bill, including all that alleged misconduct, and stated what had been done with the assets received by them. On October 14, 1954, a petition was filed by the defendants that requested leave to take testimony. A date for a hearing was set, and plaintiff issued summonses for his witnesses.

On October 20, 1954, this hearing was held by Judge Moser. All parties were represented by counsel, and the defendants in support of their defense that the plaintiff as a stockholder had no right of action, but the right of action, if any, belonged to the corporations named in the bill, or their successors, introduced : Proceedings in the Circuit Court for Baltimore County appointing receivers for the Norwood Construction Company; Proceedings in the United States District Court' for the District of Maryland appointing a trustee for Delvale Homes, Inc. and for Edward W. Pugh, Inc.; Assignments from Delvale Homes, Inc. and from Norwood Construction Company. (The above were the corporations named in the complaint) The Delvale assignment provided that, after the payment of the named creditors, the assignees were: “12-f; to pay the balance if any to the Delvale Homes, Inc.” No oral testimony was offered, and at the conclusion of the hearing, the Chancellor announced the bill of complaint would be dismissed. Thereafter, the following order was signed and filed: “This cause, standing ready for hearing and being submitted, the counsel for the parties were heard, ³⁴⁹ and the proceedings read and considered; It is thereupon this 26th day of October, 1954, by the Circuit Court No. 2 of Baltimore City, ADJUDGED, ORDERED and DECREED that the Bill of Complaint be and the same is hereby dismissed, costs to be paid by the Complainant.” On January 17, 1955, the plaintiff filed a petition to amend the above order of October 26.

This was presented to Judge Moser by new counsel for the plaintiff without notice to opposing counsel and the following order was signed: “This cause standing ready for hearing, the counsel for the parties were heard, and it is thereupon this 17th day of January, 1955 by the Circuit Court No. 2 of Baltimore City, ADJUDGED, ORDERED and DECREED that the Bill of the Complaint be and the same is hereby dismissed for lack of jurisdiction and for multiplicity of suits, costs to be paid by the Complainant, said cause not having been heard on its merits.” On January 24th the court voided this latter, and substituted a show cause order. The defendants demurred to the petition that had been filed on January 17, 1955. The demurrers were sustained with leave to amend. An amended petition was filed alleging generally that the court had dismissed the bill for lack of jurisdiction and multiplicity of suits and the cause was not heard on its merits, and that the order of October 26th does not reflect what the court intended it to state.

Defendants again demurred. On January 31, 1956, after a hearing on the demurrers, an order was signed sustaining the demurrers and dismissing the amended petition. The appeal is from this order. The only question presented for decision is, are the allegations of the appellant’s amended petition, as set forth above, sufficient to warrant or justify the amendment or revision of the enrolled decree, under the circumstances in this case?

There are two other contentions set forth in appellant’s ³⁵⁰ brief, but we are unable to discover where they were raised, or decided, below; so, under Rule 9, we are not at liberty to consider them. The order of October 26, set out in full above, was a definitive decree; it contained no reservation of equities or power of further direction, but was final upon the rights of the parties. This being so, it became enrolled from and after the expiration of 30 days from its date, the day of the date inclusive. Rule 48, Gen.

Eq. Rules. The Court, by its order of Jan. 17, 1955, attempted to deal with it thereafter, so, it is necessary to ascertain the power and authority of the Court over its decrees after enrollment. Rule 1, Sec. VI, Gen.

Rules of Prac. and Proc. states “* * * After the expiration of such period (enrollment of decree in equity) the court shall have the same revisory power and control