Withers v. Denmead

Bowie, C. J., delivered the opinion of this Court. The object of the bill in this case, as indicated by the prayer for relief, is, that the appellee may be removed from the trust created by certain deeds referred to, and another appointed in his stead; that a contract between the appellants and appellee, for certain extra compensation be cancelled, and the appellee enjoined from selling or disposing of any portion of the reed estate conveyed to him by said deeds. ¹⁴⁴ ■The allegations of misconduct upon which this prayer is based, are not necessarily involved in the present consideration of this appeal. Suffice it to say they are broadly denied by the Answers, and not sustained by the evidence. The appellee relies on the facts, that before the institution of this suit, he had given bond as required by law; duly reported his sales and other proceedings to the Circuit Court for Baltimore County, in which the complainant had appeared and filed exceptions, which after ^evidence taken and hearing of arguments, the Circuit Court had overruled, from which order overruling the exceptions the appellants had taken an appeal to the Court of Appeals, which appeal is still pending: wherefore, he submits, “how far this Court or the Circuit Court of Baltimore City ought to take jurisdiction in the premises, seeing thaf the subject of the execution of said trust is already before the Circuit Court for Baltimore County,” in the Equity proceedings therein above mentioned and exhibited.

The. answer of the appellee'being filed, an order was passed, on his motion to dissolve, setting down the motion for hearing on the 16th May 1862, with leave to the parties or either of them, to take testimony upon notice to the opposite party. Afterwards, on the 16th June 1862, it was ordered and decreed by the Superior Court of Baltimore City, sitting as a Court of Equity, that the injunction heretofore granted in this case be dissolved, and that the hill of complaint be dismissed with costs, from which decree this appeal is taken. The learned Judge helow, in his opinion preceding this order says: “In this case it is apparent from an authenticated copy of the record of the proceedings of the Circuit Court for Baltimore County, marked exhibit A. D., No. 1,. and filed in the cause as part of the answer of Adam ¹⁴⁵ Denmead, that at the time and before the institution of this suit, the Circuit Court for Baltimore County was in the full possession of the case, in reference to all matters connected with the execution of the trust, and the ability, integrity and fidelity of the trustee, and under such circumstances, the proposition that this Court cannot entertain the cause, and has no jurisdiction over the subject covered by the bill, is now too firmly established to be discussed:” — for which ho referred to Brooks vs. Delaplaine, 1 Md. Ch. Dec., 351.

In that case Chancellor JOHNSON says: “There is no instance, as remarked by the late Chancellor, in Brown vs. Wallace, 1 G. & J., 497 , in which either one of the English Courts has attempted to hinder, or stay any part of the proceedings, in a suit which had been rightly instituted, and was then progressing in another; nor has it ever been intimated, that either of these Courts could call before it the parties to a suit depending in the other, to give an account of acts done under the authority of the other. The rule established by that case, hoth by the reasoning and judgment of the Chancellor, and .by the Court of Appeals, is this: That when two Courts have concurrent jurisdiction over the same subject-matter, the Court in which the suit is first commenced, is entitled to retain it.” It is contended on the part of the appellants, that the principles herein referred to, have no application to the