Price v. Taylor
| Decision Date | 13 May 1864 |
| Citation | 21 Md. 356 |
| Parties | JOHN O. PRICE v. FRANCES T. D. TAYLOR. |
| Court | Maryland Court of Appeals |
APPEAL from the Circuit Court for Baltimore County:
The proceedings brought up by this appeal are founded upon issues originally sent from the Orphans' Court of Baltimore City to the Superior Court of Baltimore City, and from thence removed upon the motion and affidavit of the defendant, John O. Price, (now appellant,) to the Circuit Court for Baltimore County.
On the 6th of May 1857, the said John O. Price filed in the Orphans' Court of Baltimore City, a writing purporting to be the last will of Charcilla C. D. Owings, of Baltimore County, then lately deceased.
A caveat against granting probate to this paper was filed by the said Francis T. D. Taylor, on the 8th of May 1857, and the answer of John O. Price, asserting the validity of the instrument, and propounding it for probate, was filed the same day. On the 30th of July 1857, on the petition of Mrs. Taylor, the caveator, the Orphans' Court ordered and directed issues to be sent to the Superior Court of Baltimore City, for trial therein.
On 1st August 1857, the record was accordingly transmitted to the Superior Court. At the September term 1857, upon the suggestion and affidavit of John O. Price, that a fair and impartial trial could not be had in that Court, the record of proceedings was ordered to be transmitted to the Circuit Court for Baltimore County.
In this last mentioned Court the parties appeared by their attorneys and the trial was postponed from term to term till the 25th of January 1859, when a writing was filed, which was signed by Mrs. Taylor, and was in the following words: "
The case remained without further proceedings, until the 23rd of July 1861, when Mrs. Taylor filed her petition in said Court asking leave to take from the file the paper writing filed the 25th of January 1859, and purporting to be her order to the clerk to enter this case dismissed, & c.
This motion or petition was afterwards set down for hearing, and evidence was offered by both sides, among which was the affidavit of Robert L. Lowe, in which he states, " that on the 25th day of January 1859, he was deputy clerk of the Circuit Court for Baltimore County, and as such clerk made the entry of that date on the docket in this cause; that said entry was made in the clerk's office, and without any direction or order of the Court, or any authority other than the paper writing signed by Mrs. F. T. D. Taylor, which was then delivered to him in said office, and was by him filed among the papers in the cause."
The defendant, Price, filed a copy of the docket entries of the Orphans' Court in relation to this caveat, which the Court refused to admit in evidence.
On the 24th of January 1862, the Court (PRICE, J.) passed an order giving leave to Mrs. Taylor to withdraw the paper writing mentioned in her petition, and directing the docket to be corrected by striking out the entry of dismissal and reinstating the case by regular continuances.
From this order the present appeal is taken.
The cause was argued before BOWIE, C. J., and GOLDSBOROUGH and COCHRAN, J. I. N. Steele, for the appellant:
It will be contended for the appellant:
1st. That the plaintiff in the issues pending in the Circuit Court, had the right to dismiss the cause, and her order filed in the clerk's office, authorized the entry of dismissal. 2 Tidd's Practice, 731, 732, 733. Evans' Practice, 261, 263, 264. Act of Assembly 1840, ch. 96, sec. 2. Act of 1798, ch. 101, sub-ch. 8, sec. 20, sub-ch. 15, sec. 17. Pegg, et al., vs. Warford, 4 Md. Rep., 396. Warford, et al., vs. Colvin, 14 Md. Rep., 555.
2nd. That if there was any irregularity in filing said order, and making said entry, the said plaintiff had no right, especially upon the lapse of two years, to take advantage of her own wrong, for the purpose of reinstating on the docket a case which had been dissmissed by her own order. Collins vs. Johnson, 81 Eng. Com. Law Rep., 588, 612. Kemp vs. Cook, 18 Md. Rep., 138, 139.
3rd. That a copy of the docket entry having been exhibited to the Orphans' Court, and that Court having thereupon proceeded to admit the will to probate, it would not be just to that Court or to the defendant, and would be in violation of the principle, that a party will be held to make good his own acts and declarations, which have been acted on by others, if the appellee should now be permitted to undo her own solemn act; and the Court below, instead of giving her leave to withdraw her order, of her own mere motion, and without reason assigned, and without consent of the defendant, should, if that was necessary, have ratified the entry made by the clerk, or directed it to have been made nunc pro tunc. 1 Greenleaf's Ev., sec. 307, 208. 2 Smith's Leading Cases, 619, 642, 643, 593, 594, 687, 688.
Reverdy Johnson and A. W. Machen, for the appellee:
1. The plaintiff upon an issue is not like a plaintiff in an action, and he cannot, by his mere order, work a discontinuance.
(1.) The proceeding is a statutory one throughout, and to justify such exercise of control over its course by one of the parties, express authority must be found in the Act of Assembly. But, on the contrary, the Act carefully excludes the inference that the issue is to have all the qualities of an action. It confers certain powers upon the Court where the issues are to be tried, and declares it shall exercise those powers as if the issue or issues were in a suit therein instituted. 1798, ch. 101. Sub-ch. 15, sec. 17, and sub-ch. 8, sec. 20. 2 Archbold's Pract., 233. Arch. Forms, 555. 1 Tidd Pract., 679.2 Sellon's Pract., 334, 335.
An avowant in replevin, though plaintiff in the issue, cannot discontinue. Long vs. Buckeridge, 1 Strange, 112.
Mrs. Taylor continued in Court by her attorneys, which at common law would have prevented a discontinuance. 2 Sellon's Pr., 336. 1 Tidd., 679. She could not herself practice law. Const., Art. 4, sec. 31. Art. 1, sec. 1.
(2.) It is unreasonable and unjust, that the party who happens to be plaintiff should have this power. Pegg vs. Warford, 4 Md. Rep., 395.
II.--(1.) Whatever Mrs. Taylor might have been able to effect in some other way, her mere order to the clerk amounted to nothing. Opinion of Supreme Court, 12 How., 384, 385, in the case of Sargent vs. State Bank of Ind.
(2.) It is very clear it was not in the power of the clerk to give any additional effect to the order. Prout vs. Berry, 12 G. & J., 285. Weighorst vs. The State, 7 Md. Rep., 450. Watkins vs. The State, 14 Md. Rep., 412. The clerk cannot enter an appearance, except in the presence of the Court. State, use of Sprigg, vs. Jones, 8 Md. Rep., 95.
III.--Mrs. Taylor's order to Mr. Carman, remaining as it did in fieri, without any action of the Court upon it, was at all events revocable by her. The intermediate proceedings in the Orphans' Court cannot prejudice us; for:
(1.) Mrs. Taylor's order is not a representation of the existence of a certain state of facts, but an act; its legal operation, whatever it might be, was as capable of being known and recognized by the appellant, as by Mrs. Taylor herself. There can be no estoppel under such circumstances. Tongue's Lessee vs. Nutwell, 17 Md. Rep., 230. Casey's Lessee vs. Inloes, 1 Gill, 501, 502. Mayor & City Council vs. Porter, 18 Md. Rep., 301. 2 Smith Lead. Cas., 460. Summersett vs. Adamson, 1 Bing., 75, (8 E. C. L., 256,) per Tenterden, C. J. & Parke, J. Stratford Railway Co. vs. Stratton, 2 Barn. & Adol., 518, 525, 526, (22 E. C. L., 130.)
(2.) It is a question of jurisdiction. While the issues remained in fact untried and undisposed of in any method recognized by law, the Orphans' Court were utterly without power to admit the will to probate. Their order of the 26th of March 1859, consequently was a nullity. Pegg vs. Warford, 4 Md. Rep., 394. Mayor & City Council vs. Por ter, 18 Md. Rep., 300, 301. Sisarone vs. Beadle, 1 Dowl. Pract. Cas., (new series, ) 566.
(3.) The Orphans' Court did not act upon Mrs. Taylor's order. It was not produced before them.
(4.) Price did not use Mrs. Taylor's order in the way in which only he could, in any view of the case, legitimately make use of it, namely, as a foundation for a mutual agreement or consent to the abandonment of the former issues, for the purpose of allowing other issues to be framed and sent. Pegg vs. Warford, 4 Md. Rep., 396.
IV.--The order of the Circuit Court for Baltimore County, now in question, is not one properly subject to appeal: 1 Code Pub. Law, Art. 5, secs. 3 and 5, (1832, ch. 208.) Crockett vs. Parke, 7 Gill, 240. Savage Man. Co. vs. Owings, 3 Gill, 498. 2 H. & J., 345. 1 Md. Rep., 13. 2 H. & J., 247; -- the matter lying peculiarly within the jurisdiction of the Circuit Court. Balch vs. Shaw, 7 Cushing, 282.
In disposing of this appeal we are called upon to decide whether the appellee had power to dismiss the issues in this case, and if so, whether her order to the clerk of the Court below, directing him to make that entry, was an effective exercise of that power.
These issues were made up and sent to the Superior Court, in pursuance of an order passed by the Orphans' Court of Baltimore City, on the petition of the appellee, who had previously filed a caveat in that Court against the probate of the paper propounded by the...
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