Waters v. Waters

• Decision Date: 20 December 1867
• Citation: 28 Md. 11
• Parties: WILLIAM A. WATERS, and others, v. WASHINGTON WATERS and ELLEN M. WATERS. SAME v. SAME.
• Court: Maryland Court of Appeals

28 Md. 11

WILLIAM A. WATERS, and others, v. WASHINGTON WATERS and ELLEN M. WATERS.

SAME v. SAME.

Court of Appeals of Maryland

December 20, 1867

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

James Revell and William Harwood, for the appellants.

The only question on the first appeal is, whether the Orphans' Court should have remanded the record as certified by the clerk of the Circuit Court for Anne Arundel county, back to that Court. The clerk of the Circuit Court for Anne Arundel county certified either to the certificate of Judge MAGRUDER, or to the whole record, originating in the Orphans' Court of Montgomery county, and passing by removals to Anne Arundel county. The record, if full and complete, would show the two contrary verdicts rendered by the first and second juries, and the erroneous awarding of the venire facias de novo, by Judge TUCK, for supposed errors patent in the first verdict as rendered. Regarding this venire, upon the avowed grounds taken in the order of the Judge, as an error of law, patent on the record, and in nowise the exercise of a discretionary power to grant a new trial, we hold that after the final judgment was rendered by the Orphans' Court, it is competent for this Court to see that the judgment is entered upon the true and sufficient first verdict, and not on the second verdict resulting from an erroneous awarding of a venire facias de novo.

The case is not yet ripe for a discussion of this important question, which, at the proper time, we shall fully argue upon authority and principle and the manifest policy of the Code; but, to guard against any prejudice to or compromise of that question, we are apprehensive that the Judge's certificate is alone certified to by the clerk, or at least that this certificate is all that the Orphans' Court can regard, and as the Judge has only certified the last verdict we should in that event be precluded from raising the question of the legal finality of the first verdict. Neither the certificate of the clerk, or Judge stating certain facts is a proper transmission of the action or finding of the Court, upon issues submitted from the Orphan's Court there must be a full record of the proceedings and finding of the jury in the Circuit Court, authenticated in the form prescribed by law. Hammond vs. Norris, 2 H. & J., 132. It is plain that the Judge has only certified the last verdict directly to the Orphans' Court. At the foot of this judicial certificate the clerk simply certifies "that the aforegoing is truly taken from the record of the proceedings of the Circuit Court for Anne Arundel county." Now is this a certificate to the whole record, or only to the Judge's certificate? If to the whole record, is it such an authentication as will authorize the Orphans' Court to consider the first verdict, and decide on which verdict the judgment shall be entered? If this question can be affirmatively answered, our object is accomplished; but we fear it cannot be, because the Code expressly declares that in these issues from the Orphans' Court, "a certificate from such Court (meaning the Court of law,) or the Judge thereof, of the verdict or finding of the jury under the seal thereof, shall be admitted by the Orphans' Court to establish or destroy the claim, or any part thereof." Code of Pub Gen'l Laws, Art. 93, secs. 224 and 250.

This leaves open the case of two verdicts and the question, which is the legal verdict in the case? There is no order of the Court to certify the whole record, as there might have been; but there is an express certificate of the Judge of the finding of the last jury alone.

Is anything before the Orphans' Court but Judge MAGRUDER'S certificate under seal of his Court? If there be anything else before the Orphans' Court, it is only there because the clerk has chosen, of his own accord, to give a transcript of the whole record, and for this there is no legal authority. The case stands simply as if Judge MAGRUDER had certified nothing but the finding of the last jury; and in that case how is the Orphans' Court to know the authority of Judge MAGRUDER so to certify? The Orphans' Court sent the issues to Montgomery county, and if there be no authenticated transcript showing all the proceedings, the first as well as the last verdict, there is nothing to show how the case got before Judge MAGRUDER, and the Orphans' Court cannot act on his certificate at all. If this be so, how is the Orphans' Court to act? If, as argued, they cannot remand the case so as to allow the Judge of the Circuit Court of Anne Arundel county to order the whole record to be certified, (which we are authorized to say he wishes to do if it be not already legally done,) then the Orphans' Court can never enter up judgment. This would be a great failure of justice it must be admitted.

It is true the Orphans' Court has no constructive powers, but it has been decided "that the power to revoke letters of administration is necessarily inherent in the Orphans' Court and a part and of the essence of the power delegated to them of granting administration." Raborg vs. Hammond, 2 H. & G., 42.

So we submit that the jurisdiction to enter judgment on verdicts certified to the Orphans' Court involves, of necessity, the power to remand the record to cure any want of authority in the Judge's certificate or any other defect appearing. Suppose the Judge were to certify the verdict contrary to the finding, or not under seal of the Court, is there no remedy in the Orphans' Court by which the Judge should correct his certificate?

The Court of law acts merely as an auxiliary to the Orphans' Court in the trial of these issues. Browne vs. Browne et al. 22 Md. Rep., 116.

If this be so and it becomes material to inquire on which of two opposing verdicts the judgment should be entered, there must be a power in the Orphans' Court to obtain the first verdict as well as the last. Here our petition averring that there was a legal first verdict, not certified by the Judge, is supported by the transcript sent to the Orphans' Court by the clerk, and all we require is, that this first verdict, with the order setting it aside, should be authenticated, especially when, without such authentication, there is no evidence of the authority of the Judge who has certified the last verdict. In other words, we maintain the necessity of a complete transcript legally certified, in order that the Orphans' Court shall decide whether it shall render judgment on the first or second verdict, that is, which is the true legal verdict.

If the first verdict ought to stand in law, and was erroneously vacated by the Judge, then the second verdict was a nullity, and the erroneous awarding of a venire facias de novo can now be corrected or disregarded by the Orphans' Court, or by this Court.

In State vs. Manly, 1 Md. Rep., 136, a record in a criminal case was remanded because the County Court remanding it, had no jurisdiction, and yet a writ of diminution cannot be granted in a criminal case by a County Court. Price vs. The State, 8 Gill, 302.

We do not ask diminution, but only a remanding of the record. In State vs. Shillinger, 6 Md. Rep., 450, this Court recognized the propriety of remanding the record where it was sent to a Court not having jurisdiction. We therefore contend that the Orphans' Court erred in dismissing our petition to remand the record for amendment by the Court from which it came. There can be no escape from this conclusion, but by holding that all the procedings, including the first verdict, are properly before the Orphan's Court. We are entitled to such a record as will enable us to claim the judgment on the first verdict, non obstante, the second illegal verdict. We consider that this Court has clearly decided that the final judgment in the Orphans' Court may be rendered upon facts outside of the verdict certified, and therefore that if it appear that the verdict certified was a nullity on its face, or aliunde, and that there was a legal prior verdict in the record which ought to stand, and is properly certified by the Court, as well as the last, that the Orphans' Court may enter judgment on the true and proper verdict. Pegg et al., vs. Warford, 4 Md. Rep., 393, 394.

If the Judge had certified the first verdict, and also certified a second contrary verdict without showing that the first had ever been set aside, what judgment would be entered? And so if the last verdict should be contradictory and inconsistent on its face, how could the Orphans' Court act on it? We see nothing to appeal from in the second case, as the prayer of the appellants was granted substantially, and nothing to appeal from in the first, if this Court be of the opinion that the whole record, including the first verdict, is properly certified for the consideration of the Orphans' Court.

William P. Maulsby and William D. Merrick, for the appellees.

The petition of the appellants, praying that the record might be remanded for amendment, is nothing more than an application for a writ of diminution. If the Orphans' Court had no jurisdiction in remanding the proceedings to the Circuit Court for Anne Arundel county, then this Court must sustain its action, and affirm its order in this respect. Under the judicial system of this State, the Orphans' Courts are Courts of limited, not general jurisdiction. In this respect they are of inferior dignity to the Circuit Courts; the writ of diminution is issued by a Court of superior jurisdiction upon appeal from the Court of inferior jurisdiction, from whose decree or order the appeal has been taken. By the 29th Article of the Code of Pub. Gen'l Laws, sections 29, 30, 31, provision is made for the issuing out of the Court of Appeals of a writ of diminution to...