Simms v. Lloyd

Irving, J., delivered the opinion of the Court. This is a creditors’ hill for the sale of a decedent’s real estate to pay his debts. Two of the creditors, John Simms and Towner, file the hill for themselves and “all others, creditors of Thomas Eawcett, of Montgomery county, deceased, who will come in and contribute to the expenses of the suit.” Some of the defendants are residents of the State, and have been reached with process, others are nonresidents and have been brought in by order of publication duly published. The hill was filed 4th February, 1815. ⁴⁷⁹ On the 23d of June, certain defendants answered and craved the protection of the Statute of Limitations, as to the claims set out in the bill.

Some of the defendants summoned having jailed to appear and answer, an inter-' locutorv decree, and order for the taking of testimony, in support of the hill, was passed against them; and the non-resident defendants having failed to appear in accordance with the notification, a decree pro confesso was passed against them. The ease then proceeded to a commission to take testimony: and the complainants not only proved tlieir own judgments and their non-payment, hut also, by way of establishing the allegation of the bill that there were other creditors besides the complainants, filed copies of judgments in favor of other persons, and certain other evidence of outstanding indebtedness. General replication to the answer filed on 23rd June, 1875, was not filed until the 4th of February, 1881. On the 19th of April, 1881, an agreement between complainants and answering defendants was filed setting the case down for hearing on the 25th of April, 1881.

On that day (25th April, 1881,) the answering defendants filed a plea of the Statute of Limitations to the judgments and extract of decree offered in evidence by the complainants. After hearing, the Circuit Court filed an opinion by which the Court adjudicated Towner’s judgment not barred by limitations, and that Simms’ judgment was harred by the Statute as respects the defendants who answered and relied on the Statute. The opinion states that the Court reserves the question whether the non-answering and non-resident defendants are entitled to the protection of the Statute, upon any of the claims, (except Towner's which was found within date). A decree was passed for a sale for the purposes mentioned in the opinion.

The complainants appealed. Inasmuch as it has been repeatedly held by this Court, that in order to receive the benefit of the Statute of Limi ⁴⁸⁰ tations it must be specially pleaded; and the reliance of one defendant in his answer or plea upon the Statute will not enure to the benefit of another defendant who has not so relied; we do not see why the Circuit Court reserved the question for future determination, as respects the persons in default and against whom an interlocutory decree and a decree pro confesso had been passed, for want of appearance and answer. Maddox vs. The State, 42 H. & J., 539 ; Merryman vs. The State, 5 H. & J., 423 ; McCormick vs. Gibson, 3 G. & J., 12 ; Dixon vs. Dixon, 1 Md. Ch. Dec., 271; The Cape Sable Co. Case, 3 Bland Ch.

R., 606; Williams vs. Banks, 11 Md., 198 , and McDowell vs. Goldsmith, 2 Md. Ch. Dec., 390. But that question having been reserved, there has been no such action on the part of the Court in that respect, as entitles the appellants to complain to this Court. To that extent the claim of the appellants is yet before the Circuit Court for adjudication, and there is no ground of appeal.

The Court exercised an undoubted right in so reserving the question, and the appellants cannot complainof it. In allowing the plea of limitations interposed, to prevail