Winakur v. Leibowitz

Johnson, J., delivered the opinion of the Court. This is an appeal from a judgment of non pros., entered by the Superior Court of Baltimore City on motion of William A. Leibowitz, the sole defendant, in an action at law pending therein. The plaintiff’s declaration, in addition to the common counts, contained a special count, in which it was alleged that the defendant and others, by their joint and several promissory note then overdue, promised to pay to the order of the plaintiff the sum of $4,000, but failed to pay the same. The note in question was filed with the declaration, and discloses that in addition to the defendant there were two other makers, one an individual, the other a corporation.

Instead of pleading, Leibowitz filed a motion for judgment of non pros., asserting that Winakur, the plaintiff, had previously used the obligation thus sued upon as the basis of a bill of complaint against the corporate maker thereof in a chancery proceeding in the Circuit Court of Baltimore City, as a result of which he had succeeded in having a receiver appointed to take charge of its assets, because of insolvency; that the receiver sold ¡such assets and wound up its affairs under the jurisdiction of the equity court. Accepting the defendant’s contention that the action thus taken ²⁵⁴ was a suit, within the meaning of- section 2, article 50 of the Code, the trial court granted his motion and entered the judgment of non pros. The question, therefore, presented by this appeal, is whether such action in the equity court is to be regarded as a “suit” contemplated by section 2, article 50 of the Code, which provides that: “No person shall institute more than one suit on a joint and several bond, promissory note, penal 'or single bill when the persons executing the same are alive and reside in the same county; and if more suits than one be instituted on any such bond, promissory note, penal or single bill, judgments of non pros, shall be entered against the plaintiff in such suits.” It is nowhere alleged in the motion that any dividend was received by appellant from the receivership proceeding, and, generally speaking, the object and purpose of a receivership is to preserve an estate intact, to keep it within the court’s jurisdiction, prevent deterioration, waste, or spoliation pending its appropriation as may be later directed by final decree. Thus, by appointing a receiver, the chancellor merely takes the sqbj ect-matter of the litigation