101 A. 543 | Md. | 1917
This is the second appeal in this case. On November 1st, 1915, a bill of complaint was filed in the Circuit Court for Baltimore County by the appellant against Thomas H. Emory for specific performance of an alleged contract by which Emory sold to the plaintiff two farms or tracts of land in Baltimore County, containing in the aggregate seven hundred and seventy-five acres of land, more or less. John R. Valentine was made a party defendant in the bill because of the purchase by him of the property through an agent of Emory with the view, as alleged in the bill, of defrauding the plaintiff, and because of an alleged understanding between Valentine and the plaintiff that if either of them purchased the property "the other should be considered as having a share or interest in the same." The bill prayed, (1) for the specific enforcement of the alleged contract between the plaintiff and Emory; (2) or, in the event the Court should refuse that relief, that a decree be passed declaring that Valentine purchased the property in trust for himself and the plaintiff, and (3) that Emory and Valentine, and their servants, agents, etc., be enjoined until the further order of the Court from taking any steps to carry out the contract of sale between them. An order restraining and enjoining the defendants as prayed in the bill was passed by the Court on the day the bill was filed, and thereafter the defendants filed their answer admitting the contract of sale between the defendants, but denying the other averments upon which the plaintiff relied for relief. *590
The proceedings in the case from the filing of the bill to the date of the order for the present appeal are set out in the record of the former appeals of Theodore W. Forbes and Osborne I. Yellott, administrators pendente lite, and John R. Valentine,ante, page 397.
On the 6th of September, 1916, Theodore W. Forbes and Osborne I. Yellott, administrators pendente lite, filed a petition in the case alleging that Thomas H. Emory had died at Saranac Lake, New York, on the 15th of August, 1916, leaving a paper writing purporting to be his last will and testament; that before the will was admitted to probate by the Orphans' Court of Baltimore County a caveat thereto was filed by an uncle and two aunts of the deceased as his heirs at law and next of kin, and that the Orphans' Court of Baltimore County had appointed the petitioners administrators pendente lite, with authority to intervene in this case, and praying the Court to pass an order making them parties defendant. On the same day the Court below passed an order making them parties defendant in the case, "provided that a copy of this order shall be served upon the plaintiff or one of his counsel of record and also upon John R. Valentine or his counsel of record on or before the 12th day of September, 1916." A copy of the order was accordingly served on counsel of record for the plaintiff and on counsel for the defendant Valentine, on the 6th of September, 1916.
On the 8th of September, 1916, the plaintiff filed a petition against the administrators pendente lite and John R. Valentine, in which, after stating that Thomas H. Emory had died, and that a caveat had been filed to the paper purporting to be his last will and testament, he alleged that it was necessary in order to preserve the property that the farm be operated; that Forbes and Yellott should not be permitted to assume the control and management of the same, and that some competent and disinterested person should be appointed receiver to take charge of it; and thereupon the Court appointed the Safe Deposit and Trust Company of *591 Baltimore receiver to take possession of and to manage and operate the farm "until it shall have been determined who is entitled to the ownership thereof."
On the 21st of October, 1916, the Court below passed an order setting for hearing, on the 28th of October, 1916, a motion of the defendants to dissolve the injunction theretofore granted, and requiring a copy of the order to be served on the plaintiff on that day. On the 26th of October, 1916, the plaintiff filed a petition alleging that the order of September 6th, 1916, making the administrators pendente lite parties defendant, was passed "upon the ex parte application" of the said Forbes and Yellott; that "pending the determination of the controversy concerning said supposed will, it is impossible to determine who will be the holders of the legal title to said real estate from whom a conveyance must be made to your petitioner in the event that this Court shall decree the relief prayed in the bill of complaint, and therefore until the determination of said controversy it is also impossible for this Court to ascertain who are sufficient parties defendant in the room and stead of said decedent"; that the plaintiff was not notified of the passage of the order of the Orphans' Court of Baltimore County authorizing the administratorspendente lite to intervene in this case, "nor of the filing of any application or petition therefor, nor was he notified of the application of said Yellott and Forbes to be made parties hereto, nor of the passage of the order aforesaid making them parties until after the same had been passed"; that he had no opportunity to be heard in reference thereto, and that he "is advised that the passage of said order by this Court was improvident and inadvertent." The petition prayed for the "rescission" of the order of September 6th, 1916, and that the administratorspendente lite be dismissed as parties defendant. The Court passed an order setting the petition for hearing on the 28th of October, 1916, and on that day, and while the petition of the plaintiff for a "rescission" of the order of September 6th, 1916, making *592 the administrators pendente lite parties, and the motion to dissolve the injunction were still pending in the Court below, the plaintiff filed his order for the present appeal from the order of September 6th, 1916, and the order setting the motion to dissolve the injunction for hearing.
In the case of Baldwin v. Mitchell,
But we are not called upon in this case to pass upon the right of the administrators pendente lite to be made parties defendant, or to express an opinion in regard to the propriety of the order of September 6th, 1916, making them parties. It appears from the return of the Sheriff that a copy of the order was served on counsel for plaintiff on the day the order was passed. On the 8th of September the plaintiff filed a petition against the administrators pendente lite and Valentine for the appointment of a receiver to take charge of the property, and no objection was raised to the order making them parties until the petition of October 26th, 1916, was filed by the plaintiff praying that the order be rescinded. After having invoked the jurisdiction of the Court below to review and rescind its order of September 6th, 1916, passed without objection, the plaintiff, in effect, refused to submit to its jurisdiction, and, abandoning his petition, enters an appeal for the purpose of having the order reviewed by this Court. The course pursued by the plaintiff is certainly not in accord with the usual practice in this State, and is one, we think, that should not receive the approval of this Court. *595
Section 4 of Article 16 of the Code provides that: "Any representative of a deceased party may appear and suggest in writing the death of the party under whom he claims, and be made a party in place of the person so dying, * * * on giving such notice to the opposite party as the Court may direct." And Section 36 of Article 5 of the Code provides: "On an appeal from a Court of Equity, no objection to the competency of a witness, or the admissibility of evidence, or to the sufficiency of the averments of the bill or petition, * * * shall be made in the Court of Appeals, unless it shall appear by the record that such objection was made by exceptions, filed in the Court from which such appeal shall have been taken." In the case of Carrington
v. Basshor Co.,
It needs no citation of authority to show that the order of October 21st, 1916, setting the motion to dissolve the injunction down for hearing, is not within the provisions of Section 26 of Article 5 of the Code, authorizing an appeal from a final decree, or an order in the nature of a final decree, and it follows from what has been said that the appeal must be dismissed.
Appeal dismissed, with costs. *597