Wylie v. Johnston

29 Md. 298 | Md. | 1868

Stewart, J.,

delivered the opinion of the. court.

The powers and duties of the Court of Appeals, are defined and limited. It cannot entertain appellate jurisdiction except when prescribed by the law. Where it undertakes to review the proceedings qf subqrdinate tribunals, the authority must be shown. It is also the province of the appellate court to decide when an appeal lies, and not the-court from which the appeal is taken.

We do not propose now to determine to what extent the right of appeal has been modified by the Code in relation to appeals from courts of law. In Rutherford v. Pope, *15 Md. 579, it was decided, that during the term at which a judgment was rendered, it is subject to the control of the court, and no appeal lies from an order made during the term, striking out a judgment by default and reinstating the case; but the appeal before us involves the consideration of the question of the power of this court, in the revisal of proceedings, in a Court of Equity. In Thomas v. Doub, 1 Md. 252, it was ruled that an application to file an amended or supplemental answer rests in the discretion of the court below; and from the refusal to give the leave, no appeal would lie.

Under Code of Pub. Gen. Laws, Art. 5, sec. 20, an appeal is allowed from any final decree, or order in the nature of a final decree, passed by a Court of Equity. Sec. 21 of the same Article provides for appeals from certain special orders or interlocutory proceedings not in their nature final. Under sec. 22, same Article, any special or incidental order passed in the progress of the cause, may be reviewed by this court if there should be an appeal from any final order or decree. This last section gives a party aggrieved by any interlocutory order, the right of having the action of the court reviewed in any particular, if, from the result of the entire proceedings, he finds cause to take an appeal. This provision, at the same time, relieves the appellate court from the necessity of deciding a case by detached instalments, but enables it to review the action of the lower court in every particular, when the case, in its entirety, is finally disposed of by that court. If all the interlocutory orders of the court below, in the progress of the cause, were subjects of immediate review by this court, it is difficult to define any limit to the exercise of appellate authority or termination to judicial proceedings.

In regard to cases where appeals are allowed from Courts of Equity, the law from the Code to which we have adverted, very specifically defines the boundaries of our appellate jurisdiction. For this court to extend it beyond that range, *would be to invade the domain of the Legislative Department of the Government, and exercise its functions. It is not for us to go outside of the limits of legislation. It is well settled, in this, State, that before a decree is enrolled it is entirely within the province of the court to revise it. It is not considered enrolled until after the expiration of the term; and it is subject to the control of the court until then. The order of the court below which we are asked to review, is not a final decree or order in the nature of a final decree. It is merely an interlocutory proceeding within the discretion of that court, and not the subject of appeal under Art. 5, sec. 20, to which we have referred \ but may be revised under sec. 22 of the same Article, if there shall be an appeal from any final order or decree in the.cause, should such event occur. It was passed by the court during the term in which the decree was pronounced, which it proposed to annul upon the terms prescribed. The order in its nature is merely provisional, and if the conditions are not complied with, (of which that court is the judge in the first instance,) it is to be a nullity, and the original decree allowed to stand. It was within the discretion of that court during the same term to have rescinded that order. The remedy by an appeal might have been rendered nugatory, by the action of that court, in the fair exercise of its own attributes. That court, in the passage of said order, was in the exercise of a discretion in the trial of the cause, not to be reviewed by us unless brought up in the future by. an appeal from some 'final disposition of the suit. We may, however, take occasion to observe, in conclusion, that if we had entertained a different opinion as to our appellate authority, we discover no sufficient reason, from the position of the case as disclosed by the record before us, to have authorized us to say that the court below, under the circumstances, did not exercise a proper discretion in the passage of the order from which the,appeal, has been taken.

Appeal dismissed.