Vickers v. Tracey

22 Md. 196 | Md. | 1864

Cochran, J.,

delivered the opinion of this Court.

The appeal in this case was taken from an order passed on the 23d of December 1862, ratifying a sale made in execution of a decree, dated the 25th of September 1861. No exception was taken to the proceedings of the trustee under the decree directing the sale; and, so far as we are informed by the brief and argument submitted on behalf of the appellants, they have prosecuted their appeal wholly on the ground of alleged error in that decree. The right of the appellee to have the property, affected by these proceedings, subjected to sale for the purpose of satisfying her claim, was ascertained and adjudicated by the decree directing the sale, and for that reason, the decree was final and conclusive on the right here contested by the appellants. The order appealed from, was contemplated by the decree as one of the things necessary to be done in executing it, and as the purpose of the order was simply to perfect the sale and establish the right of the purchaser, without affecting any right at issue between the parties to the record, it could scarcely be considered, as between them, such an order as would support an appeal. But without expressing any opinion on that point, this posture of the case presents another question of a preliminary nature, the consideration of which is necessary; and that is whether the decree of September 1861 is open to review on the appeal taken from the subsequent order of December 1862 The Code, Art. 5, sec. 20, provides that “anappeal shall be allowed from any final decree, or order, in the nature of a final decree, provided such appeal he taken within nine months from the time of such decree or order,” and on an appeal from such a decree or order, a review ol' all previous orders is authorized by section 22. These provisions were codified from the Acts of 1*785, chap. 72, sec. 27, and 1830, chap. 185, sec. 1, and although not identical in terms, yet have the same import, and should have the same construction.

(Decided October 31st 1864.)

In Portar vs. Askew, 11 G. & J., 346, the Court of Appeals refused to review a decree for a sale on an appeal from an order ratifying the auditor’s account making distribution, and again, the language of the Acts referred to was considered in the case of Phelps vs. Stewart, 17 Md., 242, and the ruling in Porter & Askew affirmed after an examination of all the previous cases on that point. Applying tbe rule of construction thus shown, to tbe case before us, it is clear that the decree of September 1861 cannot he drawn in question, nor reviewed on this appeal; and as no cause has been shown for reversing the order appealed from, it will be affirmed with costs to the appellee.

Order affirmed.