Contee v. Pratt

9 Md. 67 | Md. | 1856

Le Grand, C. J.,

delivered the opinion of this Gourt.

This is an appeal from an order of the circuit court of Prince Georges county dismissing the petition of the appellant, filed the 13th of February 1855. The object of the petition, among other things, was to procure the review and rescisión of an order of the chancellor, of date the 18th of October 1853.

We did not understand the counsel for appellant as insisting this could be done, after such a lapse of time, except on the ground that the order of the chancellor was obtained hj fraud or mistake. By the act of 1826, ch. 200, sec. 14, all appeals from decrees of the court of chancery shall be prosecuted within nine months from the time of making such decrees, and not afterwards, “ unless it shall be alleged, on oath or affirmation, that such decree was obtained by fraud or mistake.” Although the provisions of the act do not require the facts shall be proved to authorise the appeal, they do, however, require that either “fraud” or “mistake” shall be “alleged.’’ Oliver vs. Palmer & Hamilton, 11 Gill & John., 143. In the case now before us, neither the petition nor affidavit attached thereto, allege fraud or mistake in the obtention of the order sought to be rescinded. The petition merely states certain persons were under certain impressions and that proper exertions were made to procure particular proof. There is not the slightest allegation that either appellant or his solicitor was misled by anything said or done by the appellee. If misled at all, they were so by their own over confidence. The petition is rather an argument on certain suppositions than an allegation of fraud or mistake as required by the act of 1826.

The court of chancery was not abolished until the 11th day of March 1854, and the order was passed on the 18th of October preceding. The 18th rule of that court declared that every solicitor of the court was bound to take notice of any rule or order made, during the sitting of any term, relative to any suit in which he should be concerned. Alex. Ch. Pr., 368. Although the rules of the court are not in the record, we are nevertheless bound judicially to know what they are Oliver vs. Palmer & Hamilton, 11 Gill & John., 440.

This being so, in contemplation of law, in the absence of fraud or mistake, the appellant and his solicitor had knowledge of the order of the 18th of October 1853 at the expiration of the term at which it was passed. The mistake which will authorise an appeal after the lapse of nine months is not mere laches, as in this case. It must result from the act of the other party, or flow from an error of the chancellor by which the appellant was misled without any fault of his own.- We do not regard the case presented by this record as coming within the purview of the act of 1826, and therefore affirm the order of the circuit court.

Order affirmed, with costs.