Aukam v. Zantzinger

• Decision Date: 17 January 1902
• Citation: 51 A. 93,94 Md. 421
• Parties: AUKAM v. ZANTZINGER.
• Court: Maryland Court of Appeals

51 A. 93

94 Md. 421

AUKAM v. ZANTZINGER.

Court of Appeals of Maryland

January 17, 1902

Appeal from circuit court, Prince George's county, in equity George C. Merrick, Judge.

Petition by George C. Aukam against Otway B. Zantzinger. From an order dismissing the petition, petitioner appeals. Reversed.

Argued before McSHERRY, C.J., and BRISCOE, BOYD, PAGE, PEARCE, and SCHMUCKER, JJ.

D.W Baker and George P. Hoover, for appellant.

F Snowden Hill and Phil W. Chew, for appellee.

BOYD J.

There was a motion to dismiss the appeal in this case; but, as intimated at the oral argument, we think the affidavits filed sufficiently show that the appellant was not responsible for the delay in transmitting the record to this court, and the motion will therefore be overruled.

The appeal was taken from an order refusing to vacate an order of ratification of a resale made by Phil. H. Tuck, an attorney named in a mortgage given by Frederick G Aukam and wife to German H. Hunt, and dismissing the petition filed, seeking that and other relief. A sale of the mortgaged property to the appellant for $5,951 was duly ratified, and on the day of the sale he paid $200 on account of the purchase money. Afterwards Mr. Tuck filed a petition alleging that the appellant had failed to make any other payment, as required by the terms of sale, and praying that he be compelled to pay the purchase money, and, on default thereof, that the property be sold at his risk. An order was passed directing the attorney to resell the property at the risk of the appellant, and on July 11, 1899, he reported a sale to the appellee for the sum of $6,925. Frederick G. Aukam excepted to the ratification of it, and testimony was taken, and it was set for hearing on the 16th of November, 1900. On that day Mr. Tuck, the attorney, and Mr. Zantzinger, the purchaser, questioned the right of Frederick G. Aukam to object to the sale, and exceptions were then filed by the appellant. There was some intimation that the exceptions thus filed would necessitate a further delay, and probably a retaking of the testimony, and on the 17th of November, 1900, one of the solicitors for the Aukams wrote to the judge before whom the case was pending, and also to one of the solicitors for the appellee, stating that the exceptions of George C. Aukam would be withdrawn, and that they would stand on those of F.G. Aukam, and an order was filed dismissing those of George C. The judge subsequently filed an opinion in which he determined that F.G. Aukam had no standing in court to object to the sale, and also discussed the merits of the objections filed. On the 21st of February, 1901, he passed an order "that the said exceptions be, and they are hereby, overruled and dismissed, with costs to the defendants," but did not ratify the sale. On March 15, 1901, F.G. Aukam, for George C. Aukam, tendered exceptions to the sale to a deputy clerk of the court, which were refused by him on the ground that they were signed by George C. Aukam individually, and not by a solicitor. According to the affidavit of Mr. Bowie, a member of the bar of Prince George's county, he was called upon by F.G. Aukam, who informed him that the deputy clerk had refused to file the exceptions, and he then went to the clerk's office with F.G. Aukam, and found the sale had not been ratified; but he hesitated to sign the exceptions in the absence of the attorneys who appeared of record. Mr. Bowie informed the judge he had the exceptions in his possession, and afterwards went to the clerk's office the same day and found that an order of court had in the meantime been filed, ratifying the sale. That order is dated the 15th of March, 1901, and the same day the deputy clerk accepted the exceptions signed by George C. Aukam in person, but not until after he had filed the order of court ratifying the sale. This petition was afterwards filed by the appellant, which was sworn to by him and accompanied by three affidavits as to the offer of the exceptions to the deputy clerk, etc. An order was passed setting it down for hearing, and, after requiring security for costs to be given by the appellant, the appellee filed an answer, in which it is admitted that the exceptions were offered to the deputy clerk before the sale was ratified, but it alleges they were properly refused.

1. The first question that arises is whether the deputy clerk was right in refusing to file the exceptions when presented to him. It is conceded that there is no rule of the circuit court for Prince George's county authorizing or regulating the filing of chancery papers not signed by a solicitor. In Cross v. Cohen, 3 Gill. 257, it was said: "It is a universal rule of practice in chancery that exceptions, like other formal papers filed in the cause, must be signed by a solicitor of the court. If a bill is not thus signed, it may, in any stage of the cause, be taken off the files of the court. 2 Madd.Ch.Prac. 167. So of an answer. Id. 331. A plea must in like manner be signed. Id. 295. And so must an exception. Id. 346." The court was then referring to exceptions to testimony, and, as those in the case were not signed by any one, it was unnecessary to determine what papers must be signed by a solicitor; but, as that case was decided at the December term, 1845, it is not necessary for us to determine whether the statement above quoted was too broad, when made. The case has since been frequently referred to with approval by this court to show that unless exceptions to testimony are filed, plainly indicating the witness and the evidence objected to, an objection to the competency of the witness or the admissibility of the evidence will not be considered by this court.

But without meaning to determine that, even at this time, such a paper as a bill in equity, or an answer to one, is in proper form, if not signed by a solicitor, unless authorized by rule of court or a statute, it cannot be doubted that there is now greater latitude allowed litigants in that respect in the courts of this state than was formerly the case either here or in England. In Kent v. Ricards, 3 Md.Ch. 395, the chancellor quoted with approval from Henck v. Todhunter, 7 Har. & J. 275, 16 Am.Dec. 300, "that by the law and practice of the courts of this state a party might appear either in propria persona or by attorney." The eleventh equity rule adopted by this court (now section 126, art. 16, of the Code) by clear implication authorizes an appearance in propria persona; rule 52 (section 166, art. 16) permits the party himself to sign a petition for a rehearing of decrees or decretal orders; rule 49 (section 186, art. 16) expressly allows parties to agree in person to a special case stated; and other instances might be given. The second rule of the court of chancery provided that any petition or writing filed and addressed to the court, certified as therein stated, "shall have the same effect as if signed and filed by a solicitor or delivered by the person to be filed." Alex.Ch.Pr. 366. That rule has in substance been adopted in Baltimore city and many of the counties. It may not always be good practice, but it is undoubtedly true that papers of a more formal character than exceptions to sales are now often filed in the equity courts in this state, signed by the...