Cain v. Warford

7 Md. 282 | Md. | 1854

Tuck, J.,

delivered the opinion of this court.

This record was before the court on the appeal of Benjamin H. Ellicott, from the same order from which the present appeal was taken, in 4 Md. Rep., 80. It was then held that a receiver could not appeal from an order discharging him from his office. The question now is, on the motion to dismiss, whether an appeal will lie from the same order, at the instance of parties claiming to be interested in the fund?

Upon a careful examination of the law regulating appeals in this State, we are of opinion that such parties cannot maintain an appeal from orders merely dismissing receivers, for the reason that nothing is thereby adjudicated affecting the rights of the parties in interest. It operates only as a release of the court’s hold upon the property by the hand of its receiver, as being no longer necessary for the purpose which induced the appointment. If afterwards the preservation or management of the property should require it, the court might and doubtless would again exercise the power of appointing another receiver. This we take to be the law as resulting necessarily from the character and duties of such an office. 7 Gill, 320. 9 Gill, 472. 4 Md. Rep., 80.

But the order appealed from did more than discharge the receiver. It directed the personal property to be delivered over to Warford as administrator pendente lite. It does not, any more than the discharge of a receiver, settle questions of property as between the claimants, but it does necessarily determine the right of the administrator to receive and hold the estate, and is an adjudication on a point litigated in the court below, and properly before us for review. The act of 1841, ch. 11, expressly provides an appeal from orders directing the payment of money or the delivery of property, except where such payment or delivery is to a receiver. Here the delivery was required to be made by the receiver to the administrator pendente lite, and, as we have said, involved an adjudication of his right to receive the property.

The only question necessary to be decided on this appeal, is, whether Warford, as administrator pendente lite, was entitled to the possession of the estate? On this point we have no doubt. That part of the case is so fully discussed by the chancellor, that we may, without going into the question ourselves, adopt what he has so conclusively urged, as the grounds of our decree.

Decree affirmed with costs.