Redman v. Chance, 32 Md. 42

32 Md. 42 | Md. | 1870

Robinson, J.,

delivered the opinion of the Court.

On the 11th of August, 1868, the appellants filed their petition in the Orphans’ Court of Talbot county, praying that the appointment of the appellee as guardian for the infant children of Mary H. Eedman, one of the appellants, might be revoked, on the ground that it was made without notice to the mother, as required by law.

This appeal is taken from the order of the Court dismissing the petition, and refusing to send certain issues in regard to the question of notice to a Court of Law for trial.

The appellee insists that his appointment, being the act of a Court of competent jurisdiction, it cannot be impeached by a proceeding of this kind, but that the remedy of the appellants, if any, was by an appeal directly from the order of the Court making the appointment. In this view we do not concur.

The only power conferred on the Orphans’ Court in appointing guardians for infants, if the father or mother be living, is to be found in the following section of the Code:

“ The Orphans’ Court shall have the right and power to appoint a guardian to any such infant as aforesaid, although such infant may have a father or mother living at the time of the. appointment; provided, notice by the Court be given by publication or otherwise, to such father, or mother (if there be no father living) to show cause why such an appointment should not be made.”

In thus recognizing the common law-right of the parent to the guardianship of the child, the Legislature was careful to guard against the appointment of any other person except upon notice to the father or mother, if living, and a strict compliance with this provision of the statute, was, therefore, made a condition precedent to the exercise of the power conferred. Such, indeed, are the important and delicate duties of a trust of this character, and so close and intimate, ought to be the relations between the guardian and the ward, that it was obviously the purpose of the framers of the law to prevent, except under extraordinary circumstances, the intrusion of a stranger between the parent and the child. And to restrict the remedy, where the appointment is made in utter disregard of the express terms of the statute, to an appeal from the order itself, would be to deny, in many cases, relief altogether. It is the failure to comply with the law — to give the notice required, that constitutes the very ground upon which the order is impeached, and the determination of this question must necessarily depend upon evidence to be offered in the case. It may be that the proceedings in the Orphans’ Court would disclose the fact that a summons was issued, and that it was duly returned “ summoned,” and yet the party claiming to be aggrieved, may aver, and be able to prove, that this is a mistake, and that the process was served upon another person. If, however, the position insisted upon be correct — if the only remedy open to a party thus wronged is, by an appeal directly from the order making the appointment — if unable to offer evidence in support of the very ground upon which the action of the Court is impeached, the record in the Appellate Court would fail entirely to disclose the merits of the case.

In Lefever vs. Lefever, 6 Md., 472, it was held, that “the regularity ” and the “propriety ” of the appointment could not be inquired into collaterally by way of petition. But in that case the mother was regularly “ summoned,” and the appointment was not made until three months after the return of the summons. Under such circumstances, the Court said she must be considered as having waived her right to the appointment, and if aggrieved by the order of the Court, it was her duty to have appealed within the time prescribed by law. And in Slattery, Guardian, vs. Smiley, 25 Md., 389, the question before the Court was the removal of the guardian, and not the revocation of the appointment, on the ground of want of notice. The petition alleged that the guardian had been duly appointed, although against the wishes of the mother. Moreover, it was not filed until after the death of the mother, and more than three years from the date of the appointment. It was held that the appointment being the act of a Court of competent jurisdiction, it ought to be supported by every legal intendment, and, inasmuch as there was no allegation of improper conduct on the part of the guardian, either in relation to the care and management of the property or person of the infant, there was no sufficient ground to justify his removal. In Fridge vs. State, use of Kirk, 3 G. & J., 104, the suit was brought against one of the sureties on the guardian’s bond, and it was held that, the appointment being made by a Court having jurisdiction of the subject matter, the regulai’ity or correctness thereof could not be impeached collaterally in such an action. These cases do not go to the extent of saying that, where the appointment is made without notice to the father or mother, it cannot be impeached by petition, or that the only remedy for the party aggrieved is by an appeal from the order of the Court. We are clearly of opinion, therefore, that in such a case the father or mother, if living, may, by petition or other proceeding in the same Court, attack the order itself. This general principle has been repeatedly recognized in Courts of Law and Equity, where parties have been allowed, by an independent proceeding, to impeach judgments and decrees rendered without notice.

We are also of opinion that the order of the Orphans’ Court directing the Register of Wills to give verbal notice to the mother is not such a notice as the Code requires. It is well settled that Orphans’ Courts are Courts of Record, and their proceedings, judgments and orders must not rest in parol. To them is confided judicial duties of the highest importance, and when they speak it must be by the record, the proof of which must not depend on the uncertainty of human recollection. The case of Carlysle vs. Oarlysle, 10 Md., 440, and the authorities therein referred to, are decisive upon this point. There it was held, the guardian could not prove by parol an order of the Orphans’ Court directing him to make the loan, no such order appearing upon the minutes of the Court, and there being no record evidence of the same. The Code, in directing notice to be given to the father or mother, means legal notice — that is, by summons, if the party be within reach of process, and by publication, if beyond the jurisdiction of the Court.

But it is further insisted that the petition ought to have been filed within thirty days after actual knowledge on the part of the appellants of the order of the Court making the appointment. There is no statutory provision, it is true, directing within what period of time a party must appeal or institute proceedings attacking a judgment or order passed without notice. But the policy of the law which provides a time within which parties to a judgment or decree must appeal, applies with equal force where they are seeking to set aside the same when rendered without notice. Hence it has been repeatedly held that, upon the pi’inciple of analogy, the Court will apply express statutory restrictions in regard to time, to cases of similar character where no such express legislative provisions exist. Thus, the Act of 1826, chap. 200, sec. 14, provided that appeals from a decree in the Court of Chancery must be prosecuted within nine months from the date of the decree; and in Oliver vs. Palmer & Hamilton, 11 G. & 137, where a party was seeking to set aside a decree on the ground of mistake, it was held that he must file his bill for relief within nine months after knowledge of the mistake, that being the time limited for appeals. This principle has been further recognized and extended in Berrett vs. Oliver, 7 G. & J., 207, and Stoeksdale and Wife vs. Conaway, Adm’r, 14 Md., 107; 8 Md., 387. Now, the Code provides that appeals from the Orphans’ Court shall be taken within thirty days, and it must follow, from the principles laid down in the above cases, that, a party seeking to set aside an order or judgment of that Court, because the same was passed or rendered without notice, must institute proceedings within the time limited for appeals. By this rule he has the same time, after knowledge of the order or judgment passed or rendered without notice, that he would have to appeal if duly summoiied, and its application, therefore, cannot work any injustice.

But it is also urged that the Court was right in dismissing the petition, because it does not allege that proceedings were instituted within thirty days after information brought home to the appellants of the order of the Orphans’ Court. As a general rule, it is true that this ought to appear affirmatively upon the face of the petition, but no such objection was made below, and it is evident from the answer and the whole record that the only question heard and determined by the Orphans’ Court was, whether notice had been given to the mother, as required by the Code. Moreover, it is well known that proceedings before the Orphans’ Court are not conducted according to the strict rules of Chancery pleading, and to permit this objection now to be made for the first time, when there is no opportunity to amend the petition, would not only^be a surprise, but manifestly unjust to the appellants.

(Decided 19th January, 1870.)

Assuming, then, that it was. filed within thirty days after notice in fact, the Court clearly erred in refusing to send the issues tendered to a Court of Law for trial. Sec. 250, Art. 93, of the Code of Public General Laws; Barroll & Cannell, vs. Reading, 5 H. & J., 175; Pegg vs. Warford, 4 Md., 385; Brooke vs. Townshend, 7 Gill, 15.

The record does not disclose the evidence offered in the Court below. If, however, there is no other proof in regard to the notice than the verbal order relied upon in the answer of the appellee, it must follow, from what has been said, that such a notice is not a compliance with the 146th section of Art. 93 of the Code.

In reversing the order below it may be proper to add, that the question whether proceedings were instituted within thirty days after actual knowledge on the part of the appellants of the appointment by the Orphans’ Court, is still open for inquiry. If not filed within that time, the application comes too late.

For these reasons, the order below must be reversed, and the cause remanded.

Order reversed and cause remanded.