Bris Realty Co. v. Phoenix Sav. & Loan Ass'n

• Decision Date: 12 March 1965
• Docket Number: No. 158,158
• Citation: 208 A.2d 68,238 Md. 84
• Parties: BRIS REALTY CO. et al. v. PHOENIX SAVINGS AND LOAN ASSN., Inc.
• Court: Maryland Court of Appeals

Page 84

238 Md. 84

208 A.2d 68

BRIS REALTY CO. et al. v. PHOENIX SAVINGS AND LOAN ASSN., Inc.

No. 158.

Court of Appeals of Maryland.

March 12, 1965.

Eugene Hettleman, Baltimore, for appellants.

Herbert H. Rosenbaum, Baltimore, for appellee.

Before PRESCOTT, C. J., and HAMMOND, HORNEY and SYBERT, JJ., and THOMAS J. KEATING, Jr., Special Judge.

KEATING, Judge.

The appellee, Phoenix, went into conservatorship and then into reorganization under the jurisdiction of the Circuit Court of Baltimore City. Under the plan of reorganization, as ordered by the court, claimants, whose claims against the appellee were disputed by the latter, were directed to place such disputed claims in issue before a special master in chancery who was empowered by the order of his appointment 'to take testimony and make a final determination, subject to further orders of this court, on the question of whether such claims should be recognized as legal liabilities of Phoenix.' The appellants, who were claimants, pressed their disputed claims before the special master, who heard voluminous testimony and made certain final determinations in respect thereto. As to some of these final determinations, the appellants excepted and the exceptions were heard by the chancellor who overruled them and affirmed the master's findings. The appellants assign four grounds of error:

(1) The refusal of the chancellor to permit the appellants to take testimony before him on the exceptions. The record shows that the exceptions, as filed by the appellants to the special master's report, were general in form and failed to point out any finding of fact not supported by the testimony before the master, or any law misapplied by him to such facts in arriving at his allowance or disallowance of the respective claims.

The appellants take the position that as to matters contained in those parts or paragraphs of the master's report to which they have generally excepted, they had the right to present testimony before the court de novo, citing Egerton v. Reilly, 1 Gill & J. 385, and Worthington v. Hiss, 70 Md. 172, 16 A. 534, 17 A. 1026, as authority. These two cases furnish no such authority. In Egerton, this Court merely held that the lower court erred in referring a matter to an auditor before preliminary pleadings had brought the case the issue; and in Worthington, the appeal was from a decree remanding a case to an auditor with specific instructions to state an account upon principles laid down in the opinion accompanying the decree. Both sides appealed from the directions given to the auditor and no procedural question with respect to testimony either before the auditor or before the court was raised, and nowhere does it appear that the trial court, in hearing exceptions to the auditor's account before its remand, heard any testimony. The appellants also cite Sewell v. Sewell, 218 Md. 63, 145 A.2d 422, for the proposition that a master is not a judicial officer and therefore the court cannot delegate its judicial function to a nonjudicial officer. The short answer to this is that the Sewell case dealt with testimony taken before an examiner, not a master. The powers and duties of examiners and masters are not coextensive. The former merely records testimony for perusal of the court, see Miller, Equity Procedure, p. 262, et seq., whereas the latter, properly called an auditor and master, is an adviser of the court, makes findings, reports to the court and suggests the nature and propriety of the decree. Miller, op. cit., p. 654.

The cases of Maryland Lumber Co. v. White, 205 Md. 180, 107 A.2d 73; Pinkston v. Higham, 224 Md. 513, 168 A.2d 712, and Alexander v. Hergenroeder, 226 Md. 559, 174 A.2d 580, all dealing with reports of masters in chancery, clearly indicate our view that a master's findings are prima facie correct. When exceptions to auditors' reports are filed, they should point out the particular error or errors objected to and general exceptions cannot be considered. Miller, op. cit., p. 643; Scrivener's Adm'r v. Scrivener's Ex'rs, 1 Har. & J. 743; Young v. Omohundro, 69 Md. 424, 16 A. 120. We believe this is equally true of exceptions to a master's report. One of the purposes of seeking the advice and recommendations of an auditor and master is to conserve the time of the court. If claimants had the right to offer new or additional testimony before the court, not only would there be no saving of the court's time but, perhaps, the whole structure of the auditor's and master's report would be worthless, thus requiring a remand and revision. Exceptions to a report of an auditor and master will not be sustained unless his findings of fact from the evidence are clearly erroneous, or unless he misapplies the law to his findings of fact. Alexander v. Hergenroeder, supra.

(II). That the chancellor erred in affirming the action of the auditor and master in admitting the testimony of Clarence W. Sharp, Esq. The appellants' contention is based on the fact that Mr. Sharp, a member of the bar, while appearing as one of the attorneys of record for the appellee, Phoenix, before the master and after having cross-examined some of the appellants' witnesses, struck out his appearance for the appellee and took the witness stand to testify as the sole witness for the appellee.

The record shows that Mr. Sharp had gained a thorough and unique knowledge of the voluminous and intricate dealings between the appellants and the appellee, he having acted as an assistant to the counsel for the court's conservator during the period of the appellee's conservatorship; that after the reorganization of the appellee was authorized and the instant proceedings before the master were instituted, the appellee engaged Mr. Sharp, because of his familiarity with the books, records and dealings of the appellee with the appellants, to act as co-counsel in representing its interest; that he assisted in preparing the...