Kinnear v. Lee

• Citation: 28 Md. 488
• Parties: JOHN W. KINNEAR and THOMAS A. WILLIS v. PATRICK LEE and PATRICK REYNOLDS.
• Decision Date: 15 April 1868
• Court: Court of Appeals of Maryland

28 Md. 488

JOHN W. KINNEAR and THOMAS A. WILLIS v. PATRICK LEE and PATRICK REYNOLDS.

Court of Appeals of Maryland

April 15, 1868

APPEAL from the Superior Court of Baltimore City.

On the 9th of October, 1858, execution was issued on a magistrate's judgment in Baltimore city, under which certain real estate was sold to the appellants Kinnear & Willis, the former of whom was the judgment creditor. The sale was duly reported to the magistrate, by whom a return of the proceedings was made to the Superior Court of Baltimore city for ratification. Patrick Lee filed his exceptions to the sale, in the Superior Court of Baltimore city, to which an answer was filed by Kinnear, and a commission was issued under which testimony was taken in regard to the sale. The ground taken by this Court in its decision, renders it unnecessary to set forth the testimony, or the arguments of counsel.

On the 4th of June, 1859, the Court below (LEE, J.) passed an order directing "that the exceptions to the sale be sustained and the exceptant pay the amount of the purchase, with interest and costs of these proceedings."

From this order the present appeal was taken.

The cause was argued before BARTOL, C.J., STEWART, MILLER, ALVEY and ROBINSON, J.

Luther M. Reynolds, for the appellants.

James A. Buchanan, and Wilson C. N. Carr, for the appellees.

MILLER J., delivered the opinion of this Court.

In exercising the power of confirming or vacating sales of real estate, on executions upon magistrates' judgments conferred by the Act of 1831, ch. 290, the Courts do not proceed according to the forms of the common law, or under their usual and general jurisdiction, but in the exercise of a special statutory authority, to be strictly followed, and from their judgments in such cases no appeal is provided. If, therefore, the order appealed from in this case had simply vacated the sale, this Court would have no jurisdiction to review it. But where an inferior Court assumes jurisdiction, or where an order on its face appears to be partly within, and partly beyond the scope of the Court's authority, an appeal lies, and the judgment thus unwarrantably pronounced must be reversed. Webster vs. Cockey, 9 Gill, 93; Bell, et al. vs. Jones, 10 Md. Rep., 331. Upon this ground this appeal must be entertained and the order of the Court below reversed.

The constable's return states that the appellants were the purchasers of the property, being the highest bidders therefor. The exceptant avers he was the highest bidder and objects to the confirmation of the sale, because his bid was not accepted and he not returned as the purchaser: and on this point testimony was taken on both sides. The Court's order " sustains the exceptions" and directs " the exceptant to pay the amount of the...