Ashton v. Ashton

| Md. | Mar 20, 1872

Brent, J.,

delivered the opinion of the Court.

A motion has been made to dismiss the appeal in this case, upon the ground that it was taken after the time limited by law for appeals in equity.

The decree in the case was passed on the 23d day of November, 1855, and the appeal was taken on the 10th day of February, 1870. At this latter date the appellant, a few months after his arrival at age, filed under oath his petition for an appeal, alleging that the decree ■“ was obtained by surprise and fraud which have only come to his knowledge since the 28th day of December, 1869.” The proceedings in the case had been taken against him during his minority, — his appearance as defendant being by a guardian ad litem, duly appointed under a commision issued for that purpose.

The time, within which appeals are allowed from decrees and orders in equity, is regulated by the 20th section of Article 5 of the Code. It provides that all appeals shall be taken within nine months from the time of making such decree or order and not afterwards, “ unless it shall be alleged on oath that such order was obtained by fraud or mistake.” In the case of Oliver vs. Palmer & Hamilton, 11 G. & J., 138, a similar provision in the 14th section of the Act of 1826, ch. 200, was construed to give the right of appeal at any time after the decree or order was passed, if the party praying it files an affidavit that the decree or order appealed from was obtained by fraud or mistake — with the limitation however that such appeal must be taken within nine months after ihe discovery of the fraud or'mistake. Giving to the section in the Code the same construction, it is very clear that the appellant has brought himself Avithin its exception. He has made oath that the decree Avas obtained by fraud, and that he had no knoAvledge of it until within less than íavo months before the appeal Avas prayed. The motion to dismiss must therefore be overruled.

The only, effect of the allegation of fraud, in the petition of the appellant for an appeal, is to bring the case before us upon appeal. It opens no neAV question, and cannot present anything for our revieAV and decision, which is outside of the record of the case as it was at the time the decree and orders appealed from were passed by the Court beloAV. The case is before us like any other appeal taken in time, and is subject to the same Jaws and rules that regulate the hearing of appeals by this Court.

.The objections urged at the argument on the part of the appellant,-that the complainants had no standing in Court as against him; that it Avas immaterial to them whether it Avas for his interest or not that his land should be sold; that the bill Avas not filed by them, or either of them, as his guardian or prochein ami, and that it appears from the a Averments of the bill that the legacies Avere not due them by his co-defendant when their bill Avas filed, present questions of jurisdiction, and cannot be heard- by this Court unless it appears by the record that such objections Avere made in the Court below. As the record does not show any such objections, we are precluded from passing upon them by the very stringent language of section 27 of Article 5, of the Code. It provides that “no defendant to a suit in equity, in which an appeal may be taken, shall make any objections to the jurisdiction of the Court below, unless it shall appear by the record that such objection was made in said Court.”

The same is to be said in regard to the averments in the bill, the admissibility of evidence, and the objection to the auditor’s report, which was finally ratified by the Court' in August, 1864. Section 26 of Art. 5 of the Code, as amended and reenacted iri 1861 by eh. 33, provides that “ On an appeal from a Court of Equity no objection * * * to the admissibility of evidence or to the sufficiency of the averments of the bill or petition, or to any account stated and reported in said cause, shall be made in the Court of Appeals, unless it shall appear by the record that such objection has been made by exceptions filed in the Court from which such appeal shall have been taken.”

The question of the sufficiency of evidence to support a decree is a question open before us. But the only evidence, which it has been argued, is insufficient in this case, is the evidence offered to show that the personal estate was inadequate for the payment of debts and legacies. The evidence upon this point is the certificate of the Register of Wills, under the seal of his office, which is to be treated by us as proof in the case inasmuch as there is no exception taken to it in the Court below. He states that the personal property is inadequate, and we cannot assume that he does not truly state the fact. Moreover the interest of this appellant in the land is not sought to be held liable for the legacies. They are charged as a lien upon the interest only of his co-defendant, William. Ashton, who by his answer has admitted the personal estate was insufficient to pay them, and who had not taken an appeal from the decree below. The land of the appellant was not decreed to be sold for their payment, and it is not perceived how the sufficiency of the evidence to establish these legacies as a charge upon "William Ashton’s life estate in the land, can be raised by the appellant upon this appeal.

The next objection, urged at the argument and now presented for the first time in the case, is, that the bill is multifarious. Where there is no objection to a bill upon this ground, raised either by demurrer, answer or plea, the Courts will sometimes sua sponte notice it at the hearing. But it must be a very strong case which will induce them to do it. If they can get to a final decree without serious embarrassment, so indisposed are they to countenance the objection, the error will generally be disregarded. If this is the rule with Courts of original jurisdiction, we can hardly suppose a case, in which the objection of multifariousness in a bill would, for the first time in the progress of a case, be entertained in an Appellate Court. Judge Story, in the case of Oliver, et al., vs. Piatt, 3 Howard, states the rule very clearly. On page 412 he says: “The objection of multifariousness cannot, as a matter of right, be taken by the parties except by demurrer, or plea or answer; and if not so taken, it is deemed to be waived. It cannot be insisted upon by the parties even at the hearing in the Court below, although it may at any time be taken by the Court sua sponte, wherever it is deemed by the Court to be necessary or proper to assist it in the due administration of justice. And at so late a period as the hearing, so reluctant is the Court to countenance the objection, that, if it can get on in the cause to a final decree without serious embarrassment, it will do so, disregarding the fault or error, when it has been acquiesced in by the parties up to that time. A fortiori an Appellate Court would scarcely entertain the objection if it was not forced upon it by a moral necessity.” Even if the bill in the present case would have been held upon demurrer to be multifarious, about which we express no opinion, it is now too late to urge the objection. It is certainly not multifarious to the extent of creating any serious embarrassment in the nature and character of the decree to be passed. It asks for tlie sale of the life estate and remainder in the same land, upon the ground that it would be greatly to the advantage of all concerned, “ that the whole should be sold and the proceeds distributed, under the direction of the Court, amongst the parties entitled.” A decree of sale, such as was passed by the Court below, is easily arrived at upon proof of the allegations in the bill, and the proceeds arising from it readily distributed under the rules in chancery among those entitled.

(Decided 20th March, 1872.)

Under the law as we find it, we are obliged to affirm the decree below.

Decree affirmed, but without prejudice to the right of the appellant to seek his remedy by other proceedings, at Law or in Equity.