Wenzel v. Milbury

⁴²⁸ Briscoe, J., delivered the opinion of the Court. The bill in this case was filed in the Circuit Court of Baltimore City on the ioth of July, igoo, by the appellant, Minnie B. Wenzel, for an injunction to restrain the appellees, Inda J. Milbury, trading as The Milbury Atlantic Supply Company, •and John B. Schwatka, Sheriff of Baltimore City, from further proceeding on an execution issued on a judgment obtained in the Superior Court of Baltimore City by the appellee, the Mil-bury Atlantic Supply Company, against James F. O'Hara, the ■defendant in the. judgment. On the same day the appellant-obtained an order directing a preliminary injunction to be issued as prayed upon the filing of a bond by the plaintiff, with the usual leave to the defendants to move for its dissolution, after answers filed and in giving the usual previous notice to the plaintiff of the motion to dissolve. The bill states that the goods and chattels levied upon to satisfy the judgment do not belong to the defendant in the judgment, but are the property of the plaintiff, Wenzel, she having purchased them of the defendant on the 7th of August, 1899, by a bill of sale which is filed as an exhibit in the case.

The defendants answered the bill on the 28th of July, 1900, denying the allegations, contained therein and averring that the bill of sale was executed for the express purpose of preventing the defendant company from collecting its debt; that it was not given, executed or recorded until the defendant company began the collection of its.debt; that it was without consideration and was given for the purpose of hindering,’delaying, and defrauding the defendant company and the other creditors of James F. O’Hara. On the 28th of July, 1900, the same day on which the defendants answered the bill they filed a petition in the case, alleging among other things that although a reasonable time had elapsed for’the filing of a bond required by the order for an injunction, no bond had been furnished by the plaintiff, and the writ of injunction as prayed for had not issued against the defendant; that the delay in giving the bond, hindered, delayed and materially damaged the petitioners, “ because the ⁴²⁹ property levied upon consists of bathing suits and appurtenances, which, unless sold during the current season, and before it is too far advanced, will realize little or nothing, and it is of great importance that said property be sold at the earliest possible moment; ” that simultaneously with the plaintiff’s application for an injunction she instituted suit at law in the-Baltimore City Court against these petitioners claiming $5,000 damages for the seizure and taking away of this property under execution, and they are advised that the suit in equity should be dismissed, unless the bond required by the order be furnished without delay. The prayer of the petition is that the plaintiff, Wenzel, elect which of the two actions she will prosecute and for such other relief as the petitioners may be entitled to. It further appears that subsequently the plaintiff, on the 7th day of August, filed an approved injunction bond, and on the same day an injunction issued as had been directed by the-previous order of the Court, dated the 10th of July, 1900.

On the 1 ith of August, 1900, the following order was passed, by the Circuit Court of Baltimore City. “ This matter coming up for a hearing of the question of dissolving the injunction ordered to be issued in this cause, and whereas at the time of the filing of the answer of the defendants in said cause no bond had been filed; and no injunction had been issued,, the sheriff proceeded to advertise the sale of the property on the writ of fieri facias referred to in the bill filed in this case,, and no bond having been filed within the period of thirty days from the time of the order for an injunction was passed in this, case. It is hereby ordered and decreed by this Court on this. 1 ith day of August, 1900, that the order of this Court passed as above, in so far as it restrains John B. Schwatka, Sheriff,, from further execution of the fieri facias issued in the case referred to in the bill filed in this cause, be, and the same is hereby rescinded, and he is hereby permitted to proceed with the sale of the property levied thereunder, but he is hereby-directed to retain the net proceeds of said sale in his possession. ⁴³⁰ and