Garey v. Hignutt

• Decision Date: 20 June 1870
• Parties: THOMAS F. GAREY and MATTHEW GAREY v. JAMES HIGNUTT, and others.
• Court: Maryland Court of Appeals

32 Md. 552

THOMAS F. GAREY and MATTHEW GAREY v. JAMES HIGNUTT, and others.

Court of Appeals of Maryland

June 20, 1870

APPEAL from the Circuit Court for Caroline County.

This appeal was taken from an order of the Court below, ratifying the third report of the auditor, distributing the proceeds of the sale of the real estate of James Hignutt, an insolvent debtor. Other facts in the case needful to an understanding of the questions decided, will be found in the opinion of the Court.

The cause was argued before BARTOL, C.J., MAULSBY, BRENT and ALVEY, J.

J W. Bryant and Frank. H. Stockett, for the appellants.

James E. Hignutt, for the appellees.

ALVEY J., delivered the opinion of the Court.

This is an appeal taken from an order of the Circuit Court for Caroline county, passed in an insolvent proceeding, whereby certain claims of the appellants have been disallowed as against the insolvent's estate.

There were two auditor's accounts filed, marked, respectively No. 2 and No. 3. That designated as No. 2 was stated according to the report of the auditor, in accordance with the views of Thomas F. Garey, one of the appellants, as to two judgment claims, numbered in the audit 7 and 8. By audit No. 3, which seems to have been stated by the direction of the insolvent trustee, the judgment claims numbered 7 and 8 in audit No. 2 were disallowed. The first of these judgments, that numbered 7, was recovered by the Farmers and Merchants' Bank of Greensboro' against Thos. Lockerman, Ennalls Hubbard and James Hignutt, at the October Term of the Circuit for Caroline county, 1857, for $600, debt and costs, and was afterwards entered to the use of Bartlett & Smith, and by them entered to the use of Matthew Garey, the other appellant, without recourse. The other judgment, No. 8, was recovered by the same plaintiff as in judgment No. 7, and at the same term of Court, against Ennalls Hubbard, Thomas F. Garey, Thomas Lockerman and James Hignutt, for $2,000, with interest thereon from the 7th of September, 1855, and costs; and which latter judgment was also entered to the use of Barlett & Smith, and by them subsequently entered to the use of Thomas F. Garey to the amount of $500, and the balance thereof to the use of Matthew Garey.

Exceptions were filed to audit No. 2, by the insolvent, because of the allowance therein of the two judgments, Nos. 7 and 8; the first in full, and the latter to the extent of one-half. Exceptions were also filed by the appellants, jointly, to the audit No. 3, because of the disallowance thereby of the two judgments, Nos. 7 and 8, and for no other cause. Upon these exceptions the Court, by its order of the 18th of March, 1868, remanded the audits back to the auditor, with direction to take proof.

Testimony was taken, and, during the progress of its production, Thomas F. Garey produced before the auditor, for the first time, another judgment, designated in the record as "Exhibit K," being a judgment of the Easton Bank of Md., use of Charles Jarrell, recovered against Ennalls Hubbard, E. Wyatt, Thomas F. Garey, James Hignutt and John R. Stack, in the Circuit Court for Caroline county, at its October Term, 1857, for $1500, with interest and costs. This judgment was also entered to the use of Thomas F. Garey, by an order of Jarrell, filed on the 2d of February, 1864.

Against the allowance of this judgment of the Easton Bank it was objected, on behalf of the insolvent and his creditors, that it had not been produced in proper time, and that no exception had been made or suggested to the audits filed because of its non-allowance, and that the auditor had no power or authority, under the order of reference, to take testimony in regard to it; and further, that the claim had been filed in the insolvent proceedings of Ennalls Hubbard, the principal in the judgment, and it was not then ascertained what would be the balance due thereon, if any, after applying the distribution from that estate.

Upon report of the evidence by the auditor, the parties, by agreement, submitted to the Court below the two audits, Nos. 2 and 3, for its decision thereon of the questions raised by the exceptions thereto, but in neither of which, as we have stated, was the judgment of the Easton Bank, use of Jarrell included, nor were they excepted to because that claim was excluded by them. The Court, upon this submission, by its order of the 6th of October, 1869, ratified audit No. 3, and rejected No. 2, and thereby excluded entirely the two judgments Nos. 7 and 8; and it is from that order this appeal is taken. And it is now contended that such order should be reversed as well, because of the disallowance of the judgment of the Easton Bank, use of Jarrell, use of Garey, as because of the disallowance of judgments Nos. 7 and 8 in audit No. 2.

1. And first, as to the judgment of the Easton Bank, claimed by Thomas F. Garey. It is manifest that the Court below did not regard that claim as properly before it, and therefore did not pass upon the propriety of its allowance as against the estate of Hignutt. Both of the audits acted upon by the Court shewed an unapplied balance of assets considerably larger than the amount of this judgment of the Easton Bank; and as that judgment was not embraced by either audit, nor expressly excluded by either, because it had not been filed in time, the Court very properly disregarded the claim as not being embraced by the exceptions. This particular claim is not even alluded to in the short opinion of the Court, nor in its order, and the only subjects of controversy disposed of, in ratifying the one audit and rejecting the other, were the two judgments, Nos. 7 and 8; and as to this judgment, filed as it was with the auditor after the audits had been stated, and exceptions taken on other grounds than for its non-allowance, the Court could, with great propriety, leave Garey to assert and establish his claim, if he in fact had any, as against the unapplied balance of the fund.

But whether Garey's right to distribution to this particular claim was passed upon by the Court or not, is quite immaterial on this appeal; for, to entitle the appellant to a review of the decision of the Court below, it should be made distinctly and affirmatively to appear from the record, not only that a decision in regard to the particular matter was made, but it should be stated and certified what particular questions were decided, in order to enable this Court to consider such questions at all; (1 Code, Art. 5 sec. 13;) and as no such statement or certificate appears in the record in regard to this claim, it is clearly not a matter before us, and we, therefore, express no...