Burns v. Bines

• Decision Date: 03 February 1948
• Docket Number: 5.
• Citation: 57 A.2d 188,189 Md. 157
• Parties: BURNS et ux. v. BINES et al.
• Court: Maryland Court of Appeals

57 A.2d 188

189 Md. 157

BURNS et ux. v. BINES et al.

No. 5.

Court of Appeals of Maryland

February 3, 1948

Appeal from Circuit Court, Harford County; Frederick Lee Cobourn Judge.

Supplemental opinion.

For former opinion, see 55 A.2d 487.

Robinson & Fahey and Edwin D. Higinbothom, all of Belair, for appellants.

Robert H. Archer, Thomas L. Sullivan and Robert H. Archer, all of Belair, for appellees.

PER CURIAM.

Appellants have filed a petition alleging that appellees have refused to deliver the child to them, on the ground that the decision of this court did not specify where custody of the child should be, and the lower court will not issue any order in the instant case concerning the custody of the child but has suggested that an action may be brought in equity. As the petition has been filed after expiration of the time for motion for reargument and after issuance of the mandate, we cannot modify our judgment of reversal. In view of the unusual circumstances we will, however, amplify our opinion in the hope of bringing this case to an end.

Appellees' ground for refusal to deliver the child is frivolous and calls for no explanation of our decision beyond a categorical statement that appellants should have custody of the child. If appellees fail to comply with our decision the lower court has the power and duty to compel them to do so without new custody proceedings.

Appellees obtained custody solely by an order which has since been reversed and is now a nullity. Green v. Stone, 1 Har. & J. 405; Owings v. Owings, 10 Gill. & J. 267. Their custody is now unlawful. In cases regarding money or other property, it is a general rule (with exceptions not now material) that 'what has been lost to a litigant under the compulsion of a judgment shall be restored thereafter, in the event of a reversal, by the litigants opposed to him, the beneficiaries of the error'. Atlantic Coast Line v Florida, 295 U.S. 301, 309, 310, 55 S.Ct. 713, 716, 79 L.Ed. 1451; Green v. Stone, supra; Owings v. Owings, supra. We see no difference in principle in this custody case. Of course, appellants have no rights of their own to the child but under our decision they represent the welfare and rights of the child. 'If the judgment is reversed, it is the duty of the court to restore the parties to their rights'. O'Hara v. MacConnell, 93 U.S. 150 154, 23 L.Ed. 840; Erwin v. Lowry, 7 How. 172, 184 12 L.Ed. 655. The power is inherent in every court to undo what it had no authority to do originally, and in which it therefore, acted erroneously, and to restore, as far as possible, the parties to their former position. The resitution does not depend upon the question whether or not ...