Downes v. Friel

• Decision Date: 09 February 1882
• Citation: Downes v. Friel, 57 Md. 531 (Md. 1882)
• Parties: V. C. DOWNES v. DANIEL FRIEL, next friend of ANN E. DOWNES and RICHARD A. DOWNES.
• Court: Maryland Court of Appeals

57 Md. 531

V. C. DOWNES v. DANIEL FRIEL, next friend of ANN E. DOWNES and RICHARD A. DOWNES.

Court of Appeals of Maryland

February 9, 1882

APPEAL from the Circuit Court for Queen Anne's County, in Equity.

The case is stated in the opinion of the Court. The deed of the 7th May, 1860, therein referred to, provided, that after the termination of the life estate of Myra E. Downes, the wife of R. E. C. Downes, grantor in the deed, the property conveyed should go to the children of the said Myra E. Downes by her husband R. E. C. Downes, and to the children of the said R E. C. Downes, in fee simple. It appeared that R. E. C. Downes was twice married; by his first wife he had two children living at the time the deed was made, one of whom is the appellant, and the other, Richard C. Downes, also living; and two by his last wife, born after the deed was made, the minors in this cause.

The cause was submitted on briefs to BARTOL, C.J., MILLER GRASON, ALVEY and IRVING, J.

V. C Downes, the appellant, in propria persona.

Thomas J. Keating, for the appellee.

BARTOL C.J., delivered the opinion of the Court.

There are two appeals in this record. The first is from the decree passed on the 25th day of May 1876, directing the sale of certain lands mentioned in the proceedings. This appeal was taken on the 16th day of January 1877, but was not prosecuted in time; the transcript of the record not having been transmitted to this Court until April 1st 1881.

It is expressly provided by rule 10, (29 Md., 4,) that "all transcripts of records on appeals from Courts of equity shall be made and transmitted to the Court of Appeals within six months from the time of the appeal prayed." In this case nearly six years elapsed before the transmission of the record. No legally sufficient reason has been shown by the appellant for this delay, the motion to dismiss the appeal must therefore prevail.

The second appeal is from the order of the Circuit Court passed on the 22nd day of December 1880, dismissing the petition of the appellant, filed on the 30th day of July 1880.

The petition was as follows:

"The petition of V. C. Downes, one of the defendants in the above cause, respectfully sets forth, that he is advised that the decree and the proceedings under which it was passed are irregular and erroneous, as appears on their face:

1st. Because the Court by which the decree was passed had no jurisdiction to decree the sale of the real estate mentioned and described in the proceedings.

2nd. Because the said real estate belonged to your petitioner.

3rd. Because the proceedings are irregular and erroneous upon their face.

4th. Because on account of such irregularity, the real estate sold greatly below its value.

5th. And because the purchasers of said real estate have not, and cannot have a good and valid title to the same, on account of said irregularities appearing on the face of said proceedings; and for other good and sufficient reasons, your petitioner prays that the said decree may be annulled, and that he may have such relief as his case may require," &c.

Nothing is better settled than that a decree cannot be reviewed and vacated upon petition, after the term has elapsed, and it has become enrolled. This can be done only by a bill of review, or by an original bill for fraud, Burch vs. Scott, 1 G. & J., 393. The exceptions to this rule are "in cases not heard upon their merits, and in which it is alleged that the decree was entered by mistake or surprise, or under such circumstances as shall satisfy the Court, in the exercise of a sound discretion, that the enrollment ought to be discharged and the decree set aside." Herbert vs. Rowles, 30 Md., 278. It is clear that this case does not fall within the exception. The petition does not allege there was fraud, mistake, or surprise in entering the decree. It appears by the record that the appellant was regularly summoned, and failing to appear and answer, an interlocutory decree was entered against him and the other adult defendants.

After the testimony had been taken and returned, the following agreement was filed on May 26th 1876:

"DANIEL FRIEL, next friend ) In the Circuit Court for Queen Anne's County,

in Equity.

vs. )

R. E. C. DOWNES, and others. )

It is agreed, that the papers in this cause be submitted to the Court for a decree, without argument."

(Signed,) THOS. J. & B. P. KEATING,

Solicitors for Complainant.

J. B. & E. H. BROWN,

Solicitors for Defendants.

It is not alleged or suggested that the Messrs. Brown were not authorized to appear as solicitors for the appellant and the other adult defendants.

So far as the appellant is concerned, the decree appears to have been passed by the consent of his solicitors, and without controversy or dispute. No surprise or mistake is alleged, and from what appears in the record, there is no ground for such allegation. The decree has been executed, the property sold, and after the lapse of more than four years from the date of the decree, the petition of the appellant was filed, asking that the decree be rescinded.

The solemn decree of a Court cannot be dealt with in that way. "Being enrolled, it must be allowed to stand for what it purports to be on its face, until revised or reversed in a more solemn manner than can be done by petition." Thruston vs. Devecmon, 30 Md., 217. In the same case it was said "that the only proper modes recognized by law, for reversing or annulling a decree after enrolment, in the absence of surprise or irregularity in obtaining it, are by bill of review for errors apparent on the face...