Stoll v. Alton

Grason, J., delivered the opinion of the Court. On November 22, 1933, the Commonwealth Bank of Baltimore, a body corporate, instituted suit against F. Conrad Stoll and Mazie Smith Stoll, his wife, in the Circuit Court for Anne Arundel County. They were duly summoned and appeared by attorney. A demurrer was entered to pleas filed by them, which was overruled, and on January 15, 1936, the case was tried before the court.

It rendered a verdict against the defendants for $5143.12, with interest from date, and costs, and judgment was entered thereon. On June 15, 1939, an order was filed in the case to enter the judgment to the use of the Madison Certificate Corporation. On January 23, 1947, the attorneys for the plaintiff struck out their appearance, ³⁴³ and Max R. Israelson and Samuel Sehenker entered their appearance for the plaintiff and directed a fieri facias to issue on the judgment. On February 17, 1947, the appellants (the defendants in the law case) filed their amended bill of complaint in this case against Joseph W. Alton, Sheriff of Anne Arundel County, and Max R. Israelson and Samuel Sehenker (appellees).

It sets out the facts narrated above, exhibits a certified copy of the docket entries in the law case; alleges the judgment in that case was not indexed until January 23, 1947; that Israelson and Sehenker “purportedly” appeared “for Madison Certificate Corporation”; that that corporation was not in existence on June 15, 1939, it having been dissolved by a decree of the Circuit Court No. 2 of Baltimore City on the 13th day of May, 1939; that the execution ordered issued by said attorneys was unlawful and unauthorized; that the assignment of the judgment to the use of the Madison Certificate Corporation passed no title in said judgment to it, since no such corporation was in existence at that time; that said defendants have ordered the Sheriff of Anne Arundel County to sell their property under the execution issued aforesaid, which is averred to be unlawful and void. The bill prays: (a) That the court assume jurisdiction; (b) that Israelson and Sehenker be restrained from proceeding further with the execution on the judgment, or from taking any other method in attempting enforcement of the judgment for any sum of money claimed by them to be due anyone; (c) that the sheriff is disqualified to serve process upon himself and that an elisor be appointed to serve process on the sheriff; (d) that the sheriff be restrained from proceeding further with the execution issued on the judgment in this case; and (e) for general relief. This bill was duly sworn to. Upon the bill, affidavit, and exhibit, the court passed a nisi order for the defendants to show cause why the relief prayed should not be granted. ³⁴⁴ .

Subsequently the appellants were permitted to file as an exhibit a certified copy of the decree of the Circuit Court No. 2 of Baltimore City, which dissolved the Madison Certificate Corporation. That decree appointed William Edgar Byrd “Permanent Receiver of the property, assets and affairs of the said Madison Certificate Corporation, a body corporate, with full power and authority to liquidate, dispose of and convert into cash all the property and assets of said Corporation under this Court’s direction”. The Sheriff answered the bill. Israelson and Schenker filed a combined demurrer and answer.

On March 29, 1947, the chancellor filed an order sustaining the demurrer, but continued the preliminary restraining order until April 7, 1947, for the