Whelan v. Cook

• Decision Date: 19 February 1868
• Citation: Whelan v. Cook, 29 Md. 1 (Md. 1868)
• Parties: THOMAS WHELAN, JR., Administrator of GEORGE J. WHELAN, C. SMITH KEECH, Administrator of AUSTIN E. SMITH, and others, v. MARY COOK, Administratrix of JOHN COOK, and others.
• Court: Maryland Court of Appeals

29 Md. 1

THOMAS WHELAN, JR., Administrator of GEORGE J. WHELAN, C. SMITH KEECH, Administrator of AUSTIN E. SMITH, and others, v. MARY COOK, Administratrix of JOHN COOK, and others.

Court of Appeals of Maryland

February 19, 1868

APPEAL from the Circuit Court for Howard County, in Equity.

The facts of the case are sufficiently stated in the opinion of the Court.The following rules on the equity side of the Circuit Court for Howard county, were relied on in the argument:

Rule 4.A commission for taking testimony is to be returned on or before the first day of the first term after the date thereof, provided it be issued thirty days before the said term; and if it be not issued thirty days before the said term, then it shall be returned to the first day of the second term thereafter; and if not so returned a rule or order may be obtained for the return thereof, by such day as shall be limited, or on application such commission shall be considered void and a new commission shall issue, or other order as may appear proper, provided, that when such commission shall not be returned it shall prima facie be considered the fault of the party who had the carrying of such commission.

Rule 10.Every solicitor of this Court is bound to take notice of every rule or order during the sitting of any term, relative to any suit in which he is or shall be concerned; any such rule or order may afterwards be made absolute or otherwise have its full effect without imposing on the party obtaining the same, the obligation of having a copy served.The clerk is directed to forward such copy to the adverse party or his solicitor, but no proof of its being forwarded shall be required.

Rule 25.At any stage of a cause where further proceedings are proper to be had on the part of the complainant, the defendant may obtain a rule for such further proceedings to be had by the fourth day of the first term after that at which such rule shall be entered; and if the complainant shall not comply with such rule, his bill may, on application be dismissed.

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

Daniel Clarke, for the appellants:

By the death of Austin E. Smith and George J. Whelan, two of the complainants, prior to the 23d of March, 1865, the suit had abated, and it was necessary before the rule of that date "for further proceedings and security for costs" could properly be laid, and the order of the 5th of July 1865, dismissing the bill, be passed, the defendants should have taken steps to make the personal representatives of the deceased, parties to the cause, either by suggestion of their deaths or by a bill of revivor, or supplemental bill in the nature of a bill of revivor.Code of Public General Laws Art. 16, secs. 2, 3, 4, 5, 12, and Art. 75, sec. 39;Maryland Ch Practice, 102; Glenn, Trustee, vs. Clapp,11 G. & J., 1.

There being an outstanding commission when the "rule further proceedings" was laid, the same was improperly passed.The proper order at this stage of the cause was a rule for the return of the commission, and not the rule """further proceedings."SeeRules 10and25of the Circuit Court for Howard county, sitting in Equity; Maryland Ch. Practice, 62, 63;Maryland and New York Coal and Iron Company, vs. Wingert,8 Gill, 171;Rule 4, Howard Co.Circuit Court.

There is error in law apparent upon the face of the record and decree, in laying the "rule further proceedings," which entitled the appellants to the relief prayed.And further the petition for leave to filea bill of review disclosed new matter or facts discovered since the passing of the order dismissing the bill, which entitled the appellants to the granting of the leave applied for.Where no proof is taken, the application may be determined upon the petition only, as sworn to by the party applying.Hodges vs. Mullikin,1 Bland, 507.

The loss of proof at the time of the passing a decree, so that a party is deprived of its benefit, and the discovery of the said proof afterwards, so that it may be used, comes clearly within the second ground upon which Courts grant leave to file a bill of review.There is no distinction in the discovery of proof taken, and which had been lost and could not be used, and the discovery of new matter, to warrant the refusal of the leave to file a bill of review, in one case, and the granting of the leave in the other.The proof taken by the commissioner must be considered as new evidence, discovered since the passing of the decree dismissing the bill, so far as Keech, administrator of Austin E. Smith, and Whelan, administrator of Whelan, are concerned, and they are entitled to leave to file a bill of review even if the other parties are not.

Although the application for leave to filea bill of review rests in the sound discretion of the Court, an appeal may be taken from the refusal to grant the leave.Oliver vs. Palmer & Hamilton,11 G. & J., 138.

One or more of the complainants being residents of Virginia, which State was engaged in war with the United States, were alien enemies, and the right to prosecute their claims was suspended.Hutchinson vs. Brock,11 Mass., 123; 6 American Law Register, 220;Prize Cases,2 Black, 635;The Venice, 2 Wallace, S. C., 258;Mrs. Alexander's Cotton, 2 Wallace, S. C., 419.

James Mackubin and Thomas Donaldson, for the appellees:

The rule for "further proceedings," was fully warranted by the general practice, and especially by the 25th rule of the Court.The death of one of several complainants to a creditors' bill does not abate the suit, or in any wise impair the rights of the survivors to proceed, or of the defendants to enforce proceedings in the cause.Code, Art. 16, sec. 1, &c. and Art. 75, sec. 39;Md.Ch. Pr., 102;Austin vs. Cochran,3 Bl., 340;Story'sEq.Pl., 357;Leigh vs. Thomas, 2 Vesey, Sr., 313.And it ought to have been shown as cause against the rule, otherwise too late.Trail, use of Buckey, vs. Snouffer,6 Md. Rep., 314;Glenn, Trustee, vs. Clapp,11 G. & J., 1.The only effect of such death is to dismiss the interests of the party deceased from the suit.His representative may intervene if he pleases, or he may abandon the prosecution of his claim simply, or he may file a new bill to assert his rights.Prior to a decree the defendant has no right to revive.Assuming that the rule was rightly entered against the surviving complainants, it is quite clear, as well upon the general practice of the late Court of Chancery as by the letter of the 10th rule of the Circuit Court in Equity, that the notice of the rule was not necessary to be given to the parties or to their solicitors.

The order of dismissal complained of, having become enrolled by lapse of time, could not be reviewed by petition or reversed by simple order thereon: Dorsey vs. Clark,4 H. & J., 553;Burch vs. Scott,1 Bland, 112;Burch et al. vs. Scott,1 G. & J., 393;Trail use of Buckey vs. Snouffer,6 Md. Rep., 314.The remedy for the party aggrieved would be by bill of review, for error in law apparent on the face of the order, or for new discovered evidence touching the point of the order.Ducker vs. Belt,3 Md. Ch. Dec., 13;Stewart vs. Beard,3 Md. Ch. Dec., 227;Notley Young's Estate.3 Md. Ch. Dec., 461;Glenn, Trustee, vs. Clapp,11 G. & J., 1.

New matter of abatement or irregularity in the proceedings, is not error in law, for which a decree may be reviewed, nor do they constitute newly discovered matter on which the party may rely.It will be observed that the prayer is for leave to file a bill of review.The case is, therefore, analogous to the case of Hodges vs. Mulliken,1 Bland, 503, and is to be governed by the rules there laid down.

But whether the remedy is to be found by petition or bill of review, the application addresses itself to the discretion of the Court and is not ex debito justitiæ.The applicant must show that he is aggrieved by the proceeding, and that the grievance alleged has not been in any degree the consequence of his own negligence.Hence, relief may be awarded to one of several petitioners and refused to the others.Thus, the surviving parties being by implication of law present in Court and bound to take notice of the entry of the rules, they were obliged to rely on any irregularity, or other matter, showing they were improvidently entered as cause against making the rule absolute.As against them, therefore, the rules were--by reason of their default in showing cause--rightly entered and rightly enforced, although it may be considered that, as against the representatives of deceased parties, the same rules had been irregularly entered.Whiting vs. The Bank of the United States,13 Peters, 7.

MILLER J., delivered the opinion of the Court:

A creditors' bill was filed May 17th, 1859, against the administratrix and heirs-at-law of John Cook, deceased, for a sale of his real estate to pay debts.The defendants answered February 22d, 1860, denying the alleged indebtedness and pleading limitations and usury to the claims of the complainants exhibited with their bill.A commission to take testimony was issued June 23d, 1860, and on the 23d of March 1865, at the regular March Term, the defendants obtained rules upon the complainants for "further proceedings and security for costs" under which the bill was dismissed on the 5th of July following.On the 15th of Feb'y, 1866, after enrolment of the order of dismissal, a petition was filed by the appellants, asking leave to file a bill of review, and from the order dismissing this petition the present appeal is taken.The rules of the Court below are made part of the record.The appellants have considered their remedy to be by a bill of review and the case must be disposed of in view of...