Bruscup v. Taylor

26 Md. 410 | Md. | 1867

Bowie, C. J.,

delivered the opinion of this Court.

"Without anticipating the questions which may arise upon the consideration of the appeal from the principal order or decree in this case, we think the motion of the appellee for a supersedeas should be granted.

Whether the Orphans’ Court had jurisdiction in the case in which the order appealed from was passed, is not now the subject of inquiry. The action of that Court now complained of is the further proceeding to enforce the original order while the appeal from it is pending. It is the opinion of this Court that the appeal stays all further proceedings.

How far the bond filed and approved of by the Orphans’ Court has this effect, we do not now determine. Independently of it, the appeal itself stays the hands of the Court below until that shall have been heard and disposed of. The language of this Court, upon a similar application in the case of Thompson vs. McKim, in 6 H. & J., 334, is very apposite, viz : “It is emphatically in such a state of things that the power of this Court, to cause by special order a suspensión of proceedings on the matter appealed from, should be exercised, .and not lightly or in every cause ; but where the Court sees that if the order or decree appealed from should turn out to be wrong, the enforcement of it pending the appeal would produce an irreparable injury to the party appealing, it ought and will interpose to prevent such injury, or all the purposes of its institution as an Appellate Court of Chancery, will not be answered.”

The answer filed in this case to the petition of the appellant, praying the interference and protection of this Court pending-the appeal, tabes the ground that the proceedings to enforce the order are authorized by the 43rd sec. of the oth Article of the Code of Public General Laws. That section cannot certainly he construed to contemplate any proceedings that would have the effect of executing the very order appealed from, unless the same can, “with propriety he carried on before the appeal is decided,” and “the Orphans’ Court can provide for conforming to the decision of the Court of Appeals, whether the said decision may eventually be for or against the appellant.”

It is not necessary to point out the obvious modes in which the enforcement of the original order might have inflicted irreparable injury on the appellants, if the same should not be affirmed. '1 he mere restoration of the fund with interest, would be no indemnity against the consequences of its execution. The proceedings contemplated by the section referred to, must therefore he of another ■character.

It may he that in a case in the predicament of this, no such further proceedings could he had. But however that may be, the order appealed from in this case, is to bring the money into Court, and certainly the party so ordered and appealing from it, is to be protected from complying with the order pending the appeal, in the absence of any statutory provision which would allow the cause below to proceed, notwithstanding the appeal. We will, therefore, grant the supersedeas asked for by the appellants.

( Decided March 2nd, 1867.)

Wherefore it is, this 2nd day of March, 1887, by the Court of Appeals of Maryland ordered, that all further proceedings in the Orphans’ Court of Baltimore city, in the case of Bruscup, Adm’r, vs. James Taylor & Margaret, his Wife, he suspended and stayed until the appeal of said James and Margaret Taylor, from the orders and decrees heretofore passed in said cause, to wit, on the 20th of October, 1866, and on the 4th of February, 1867, be heard and determined.

Rich’d L. Bowie,

Jas. L. Bartol.

Brice J. Goldsborough.

D. Weisel.