Penniman v. Miners' Bank , 100 Md. 453 ( 1905 )

P. Clarence Barnes sued the Miners and Merchants Bank of Lonaconing, a corporation of the State of Maryland, in the Superior Court of Baltimore City on two notes of $5,000 each, one signed by a certain John H. Garbaugh and the other by E.H. Glidden. The notes were endorsed by the payee, the City Trust and Banking Company of Baltimore, and duly assigned to the plaintiff. The defendant corporation was a stockholder in the City Banking Company, and owned at the time of the suit five hundred shares of its capital stock of the value $10 per share.

The declaration alleges that the banking company is insolvent and in the hands of receivers, and the suit was brought against the defendant, as stockholder, to recover its liability, under the Act of 1892, ch. 109, for the indebtedness due from this company to the plaintiff.

It appears from the record that on the 15th of September, 1903, a judgment by confession was entered in favor of the plaintiff for the sum of $10,000, and on the same day judgment was entered satisfied by order of the attorneys for the plaintiff.

Subsequently, on October 21st, 1903, the defendant corporation filed a petition in the Superior Court of Baltimore alleging the payment of the judgment, and asking leave to withdraw the notes in order to file them as claims against the City Banking Company. An order was passed allowing the withdrawal of the notes upon leaving copies; they were afterwards withdrawn from the case, and filed in Circuit Court No. 2, of Baltimore City.

On the 3rd of March, 1904, the appellants as receivers of the City Trust and Banking Company filed a petition in the case wherein judgment had been rendered alleging in substance that they are entitled to have surrendered to them the two notes filed in the suit, as an asset of the City Trust and Banking Company, and that the defendant corporation be required to return the notes to Court, and they be surrendered upon their return to the appellants as an asset of the trust company.

To the petition thus filed, the defendant corporation demurred, and from an order of Court sustaining the demurrer, this appeal has been taken.

The appellee has submitted a motion to dismiss the appeal and as it must prevail, there will be no necessity to consider the questions sought to be raised on the record.

The grounds for the motion are, (1) because the appellant is not and never was a party to the case in which the appeal is taken, (2) because the order of April 18th, 1904, from which the appeal is taken relates solely to a matter within the discretion of the lower Court determines no right between the parties, and is not subject to appeal.

The appeal is stated by the appellants' "order for appeal" to have been taken from an order of the Superior Court of Baltimore City, sustaining the defendants' demurrer and dismissing the plaintiffs petition. No order appears from the record to have been passed by the Court below dismissing the petition. The only entry that appears as to the action of the Court below is the following "Docket Entry," 18th of April, 1904, demurrer sustained."

But if it be assumed that an order such as appears by "the order for an appeal" had been passed by the Court, we do not think it would be an order from which an appeal would lie.

The relief asked by the prayer of the petition was, (1) that certain notes which had been filed in a suit at law between one Barnes and the appellee corporation, and which had been withdrawn from the suit by an order of Court and had been filed in another Court, should be returned to the Court from whence they had been withdrawn, and (2) that they be surrendered upon their return to the appellants, as an asset of their company, with the right to bring suit against the makers thereof.

The appellees demurred to this petition upon the ground, that it was bad in substance, insufficient in law, and did not on its face, state a case entitling the petitioner to the relief prayed. The Court sustained the demurrer, and thereby denied the relief asked by the petition.

To have granted the relief asked would have required a reversal of the order of Court previously passed on the 31st of October, 1903, permitting a withdrawal of the notes from the files of the Court. The order dismissing the petition was practically a refusal to strike out the order of the 31st of October, 1903. This order did not determine or conclude any right between the parties. It did not determine the title to the papers withdrawn and is not subject to appeal.

Besides this, the question of the claim or title to the notes could not be determined in a proceeding of this kind. The appellants were not parties to the suit at law, and the Superior Court had no further control or jurisdiction over the notes, as they had been withdrawn, and filed as part of the records of Circuit Court No. 2, of Baltimore City. Whatever claim or right the appellants may have to the notes in question will have to be asserted in the Circuit Court and not in the proceeding here instituted. The motion to dismiss the appeal, will be granted and the appeal dismissed.

Appeal dismissed with costs.

(Decided January 12th, 1905.)