Biddison v. Mosely

• Decision Date: 30 June 1881
• Citation: 57 Md. 89
• Parties: JOHN S. BIDDISON, Administrator of LYDIA P. MILLICHOPP v. LYDIA A. MOSELY, and others.
• Court: Maryland Court of Appeals

57 Md. 89

JOHN S. BIDDISON, Administrator of LYDIA P. MILLICHOPP v. LYDIA A. MOSELY, and others.

Court of Appeals of Maryland

June 30, 1881

APPEAL from the Orphans' Court of Baltimore County.

The case is stated in the opinion of the Court.

The cause was argued before BARTOL, C.J., GRASON, ALVEY, IRVING RITCHIE and MAGRUDER, J.

R R. Boarman, for the appellant.

F W. Story and E. O. Hinklcy, for the appellees.

IRVING J., delivered the opinion of the Court.

On the 15th of September, 1880, the appellees filed their petition in the Orphans' Court of Baltimore County, alleging that the appellant on the 7th of December, 1870, had obtained letters of administration from the Orphans' Court of Baltimore County, upon the estate of Lydia P. Millichopp, and had passed no account upon the estate since the year 1872, to the great loss and detriment of the petitioners, who were her next-of-kin and distributees of the estate, and praying for process against the administrator, and that an order may be passed compelling him to pass an account forthwith. Citation issued returnable on the 21st day of September, 1880, and was returned summoned. On the 22nd of September, 1880, there being no answer from the respondent, and no appearance, so far as the record discloses, (and as we may fairly infer,) Frederick W. Story, one of the counsel through whom the first petition was preferred, filed a second petition in his own name, alleging himself to be the attorney in fact, and at law for the several petitioners mentioned in the first petition and entitled to do all things in that behalf in their name and stead; setting out the relationship of the parties he represented to the intestate; re-asserting the facts set out in the first petition; and asking that the appellant be removed as administrator of Lydia P. Millichopp, and that Frederick W. Story be appointed administrator de bonis non in his stead. Citation issued upon this new petition returnable on the 5th day of October, 1880.

On the 8th day of October, 1880, John S. Biddison, the respondent, filed his answer, alleging certain disbursements and setting up certain excuses for his long delay in the matter. On the same day, the petitioner Story, filed in the Orphans' Court the powers of attorney, under which he was professing to act, and to the filing of the same the respondent objected, in writing, filed at the same time. The case appears to have been laid over until the 12th of October, 1880, when the record states that the parties appeared in Court again by their attorneys, "whereupon all and singular the premises being seen, and heard and fully understood by the Orphans' Court after mature deliberation," passed this order, "upon the petition of Frederick W. Story, it is the opinion of thisk Court that the said John S. Biddison, administrator, hath not acted rightly in this matter--it is, therefore, this 12th of October, 1880, adjudged and decreed, that the letters heretofore granted to the said Biddison, upon the said estate be, and the same are hereby revoked. The Court also says: that the powers of attorney numbered one and two, were read in open Court as part of the petition in the case, and received as such." From this order, Biddison, the administrator, appealed. Having failed to file any bond for more than thirty days after appeal prayed, the appellant tendered a bond, but the Orphans' Court, instead of accepting the same, dismissed the appeal for the want of bond and approval within the thirty days allowed for appeal. From this order also, appellant took an appeal and gave bond, upon which being done, the record was transmitted to this Court.

The first question for decision, is the motion of the appellees to dismiss the appeal, because the same was not transmitted within the thirty days; because there was no evidence in the record, and thirdly, because no appeal bond was filed.

The delay in transmitting the record, is referrible wholly to the omission of the Register. The reasons assigned in his affidavit, which is submitted to us by agreement of counsel, puts the whole fault on himself, and impute no laches whatever to the appellant. Under the 16th rule of this Court, therefore, this objection is untenable. The second ground for asking a dismissal is, that there is no evidence incorporated in the record; and that under sec. 72, Art. 71, of Revised Code, no appeal is allowable in such case. That section applies only to summary proceedings. This case cannot be regarded as covered by that section, for the proceeding is by petition and answer, which makes it a plenary proceeding. Cannon, Adm'x vs. Crook and Wife, 32 Md., 484. In the case just cited, the Court draws the distinction between summary and plenary proceedings, and says: "the test of a plenary proceeding is, whether a petition or bill is filed, and the parties against whom it is filed, appear and answer." It is clear, therefore, this ground does not support the motion to dismiss.

In respect to the last ground alleged in support of the motion to dismiss, viz., the want of a bond upon the appeal, it is only necessary to say, that a bond is in no case absolutely necessary for any purpose, save to stay execution of the decree or judgment.

And in cases of appeal from the Orphans' Court, there is no provision of law making a bond necessary for any purpose. If such...