Wright v. Kuhn ( 1863 )

Goldsborough, J.,

delivered the opinion of this Court:

This case presents the double aspect of a regular proceeding in the Circuit Court for Frederick County, disposing of the rights of creditors against an insolvent debtor to a fund in insolvency, and pari passu entertaining a petition by agreement followed by many of the characteristics of a bill in chancery.

William S. Gittings was appointed trustee oí Anthony Wright, who petitioned for the benefit of the insolvent laws on the 14th day of September 1858; while acting in the capacity of trustee, Gittings took possession of certain negroes named in the record, as the property of Wright the insolvent. When Gittings was about to sell these negroes, the appellant came forward and claimed them as her property, but by the agreement set out in the record, the trustee was permitted to sell them and bring the proceeds of sale into Court for distribution according to the rights of the parties interested therein, without prejudice to the claims of the appellant, and the mode of taking proof was also set out in the agreement. This agreement is prefaced as follows: “In the matter of the estate of Anthony Wright, an insolvent debtor.”

If it be claimed that appellant had a right to resort to a Court of Equity to adjust her claim, it may be answered that equity will not interfere where the party has an adequate remedy at law, and that the appellant had such remedy by an action of trover or replevin, cannot be doubted. If, therefore, she waived her right at law, and voluntarily came-into a Court exercising jurisdiction in insolvency, she must be regarded in no other light than as a claimant of money in the hands of Gittings as trustee of the insolvent debtor; and the proceedings under the agreement must be held to be but ancillary to the distribution of the fund according to the rights of the respective parties interested.

The appellant being thus in the insolvent Court, and her rights submitted to it as such, she became subject to the provisions of the insolvent laws, including the 13th section of Article 5, of the Code, which declares the right of appeal with the restrictions named in this article and. section.

By an inspection of the record, we find that the appellant recognized the obligation to comply with the provisions of the above Article and section, and actually “prays that the judge of this Court certiiy and state in writing in the case, the questions in and decided by this Court according to the provisions of the fifth Article of the Maryland Code, of Public General Laws, section thirteen.”

The certificate of the judge, as to the points decided, is wholly omitted, and as a necessary consequence, no question lias been presented for our adjudication as required by the provisions of the section referred to; under these circumstances, it is the opinion of a majority of this Court,, that we have no alternative but to dismiss the appeal.

(Decided Dec. 15th, 1863.)

Appeal dismissed.