42 Md. 378 | Md. | 1875
delivered the opinion of the Court.
In this record there are no fewer than seven appeals. Some of them from the orders of the Circuit Court passed under the Act of 1864, ch. 322, striking out appeals ; and • some of them from the orders of the Court passed in the principal case. Motions have been made in this Court to dismiss several of these appeals, and the first questions to he disposed of arise upon these motions ; for it is necessary to determine definitely which of these numerous appeals are really before us. In order to settle this preliminary question, we must go somewhat into the history of the case, stating with some particularity the proceedings in the Circuit Court.
The cause originated in a proceeding for the execution of a power of sale, contained in a deed of trust from Wm. H. Squires and wife to M. William Beveridge, trustee, dated August 1th 1861, made to secure the payment of $6500, due from the grantor to John E. Webb. The trustee reported
The Act further provides that when the entry of an appeal shall have been stricken out by the Circuit Court for the cause therein mentioned, “that thereafter no other appeal or torit of error shall be allowed.”
Under this provision it is clear that the Circuit Court committed no error in striking out the other appeals, from the order of April 24th 1873, which were afterwards entered on the 20th and 24th of January 4187. It was argued by the appellant's attorneys, that because nine months are allowed for taking an appeal by Rule 9, (29 Md., 4,) and these appeals were entered within that time, that it was error to dismiss them. But this is not a correct view. Where a party has taken his appeal as in this case, soon after the order has been passed, he is bound to prosecute it with diligence; and if he fails to do so, and the appeal is dismissed for that cause, he is not entitled to take another appeal within the nine months, because by the words of the Act of 1864, he is precluded from having any other appeal in such case, embracing the same subject-matter. It follows from what has been said, that the Order of April 24th 1873, ratifying the sale, is not before us for review, the several appeals therefrom having been properly stricken out by the Circuit Court.
It appears from the record that on the application,of Squires the purchaser, the Circuit Court on the 12th day of June 1813, passed an order directing a writ of habere facias possessionem to be issued. The execution of this order was stayed by the appeal of June 10th or 14th 1813. Afterwards through some inadvertence, that appeal not having been actually dismissed or stricken out, the Circuit Court on the 20th' day of December 1813, ordered the
On the following day, the appellant moved the Court to set aside the Order of December 20th and to quash the writ. This motion was set down for hearing at the ensuing term. A petition was also filed by the appellant praying that an injunction might be issued, restraining the appellee from proceeding further under the writ of habere, and prohibiting him, his agents and servants from going to or remaining on the premises, or exercising any control over the same, &c. This application was, on the 1st day of January 1874, set down for hearing at the next ensuing term. Answer thereto was filed by the appellee, and sundry affidavits were filed, which it is not necessary to refer to more particularly.
Upon the hearing of these motions, the Circuit Court by its order dated May 25th 1874, overruled the motion to vacate the order of December 20th 1873, and refused to grant the injunction as prayed. From this order an appeal was taken on the 26th day of June 1874. Upon this appeal, which is properly before us, we are of opinion there was no error in the action of the Circuit Court.
It is true that the “ writ of habere” had been prematurely issued, as the appeal from the order ratifying the sale was then pending. But as we have before stated, that appeal was actually stricken out on the 23rd day of January 1874. The effect of which was to leave the order of ratification in full force; and the writ of habere though irregularly issued, having been executed, and the appellee being actually entitled to the possession, it would have been an idle and nugatory proceeding then to quash the writ, or to interpose to put parties into possession, when, to use the language of the learned Judge of the Circuit Court, “it clearly appeared that their right of possession was at an end."
For the reasons stated, an order will be passed dismissing the several appeals from the order of April 24th 1873, ratifying the sale, which appeals were taken on the 20th and 24th days of January 1874 ; and affirming the orders of the Circuit Court passed on the 23rd day of January 1874, striking out the appeals of June 10th 1873, and January 20th 1874, and the order of January 26th 1874, striking out the appeal of January 24th 1874, and also affirming the order passed on the 25th day of May 1874.
Appeals dismissed, and orders affirmed.