Robinson, J.,
delivered the opinion of this Court.
The preliminary questions, raised upon the state of the pleadings in this cause, were correctly decided by the Special Judge, for the reasons assigned by him, in the able and learned opinion, filed in the Court below. It is well established, that a party may either expressly or impliedly, waive a right or advantage, which he might have enforced in proper time and manner. This principle, recognized alike by Courts of Law and Equity, applies with peculiar force to this case. The bill was filed in April; 1863, and the answer, in May, following. Upon the prayer of Blackburn, one of the defendants who did swear to the answer, a day was set apart for the hearing. At the time designated, objection was made by the complainants to the,order setting the cause down for a hearing, and another day was fixed. Again the hearing was postponed, and the defendants appealed from the order, granting the injunction. In the appellate Court, no objection was made to the answer, although if made, the appeal would have been dismissed. Keighler vs. The Savage Manufacturing Co., 12 Md. Rep., 412. The order granting the injunction was affirmed, and the cause remanded. Upon the petition of Blackburn it was reinstated, a day fixed for the hearing, and leave given to take proof. Both parties proceeded to take evidence, giving notice to each other. New parties, complainants and defendants, were made, and other proceedings had; and on the 21st of November, two years and a half from the filing of the answer, on the day set apart for the hearing, exceptions to the answer, for the first time were taken. From all these proceedings, we cannot escape the conclusion, that both parties regarded the issues as fairly made, and that the cause was to be heard on its.merits, free from any technical objections to the manner in which the defence was presented. To permit exceptions to be filed to the answer at this stage of the cause, would be to grant not only an indulgence unreasonable in itself, and to encourage vexatious delays in the prosecution of suits, but it would be manifestly unjust to the de[241]*241fendants who have incurred the expense of taking proof, upon the well grounded belief, that the ease was to be heard upon its merits.
The cases of Gibson vs. Tilton, 1 Bland, 353, and Salmon vs. Claggett, 3 Bland, 126, relied on by counsel for appellants, are not in conflict with these views. These cases were decided previous to the passage of the Acts of 1835, chapters 346 and 380, authorizing parties to take proof, and when on a motion to dissolve an injunction, the Court was confined absolutely to the bill and answer. The motion, therefore, in the language of the Chancellor, “in its very nature was founded upon the correctness and sufficiency of the answer.” In such a case, the defendant could not object to the filing of exceptions to the answer, at the hearing, because “having planted himself upon the sufficiency of his answer, at that time and for that purpose, he stands pledged to sustain it in all respects; or he must fail in his motion.” In this case, therefore, the answer must be taken free from all objections, either on account ot “ irregularity or insufficiency; ” and being in our opinion, responsive to all the material allegations in the bill, the burden of proof rests with the complainants. How far the evidence entitles them to the relief prayed, is the next question to be considered. If entitled, it must be upon the faith of an agreement, alleged in the bill to have been made by Blackburn, on the 20th January, 1863, by which he was to bring into the Orphans’ Court, all the property unadministered, to be invested by said Court, pending the litigation between the parties, touching the title to said property; and the fraudulent evasion of this agreement, by the subsequent petition of Blackburn, and the order of the Orphans’ Court, passed thereon, on the 10th of March, directing the distribution to be made. In the former appeal, in this cause, from the order granting the injunction, this Court decided “ that the order of the 10th of March, was passed by the Orphans’ Court, upon a matter within its jurisdiction, and could not be impeached collaterally, except on the ground that there was such impro[242]*242priety in the action of the Court as would vitiate it; such as want of notice to the parties, or collusion with the administrator, or that it was obtained by fraud, or imposition.”
After a careful examination of all the evidence, it is our opinion, that the allegation in the bill, as to the agreement of the 20th January, and its fraudulent evasion, by the order of the 10th of March, has not been sustained by that weight of evidence, required by the rules of law. If so, the order of the 10th of March, stands unimpeached on the gi’ound of “fraud, imposition or collusion with the administrator.” But it is insisted in the next place, that this order was passed without notice. It is true it' does not appear that a formal summons was issued, but it cannot be denied, that these complainants from the 20th of January, 1860, to the passage of the order of the 10th of March, 1863, were in the Orphans’ Court, asserting at various times, their claims as next of kin of Dr. Craufurd. On the 27th of February, when Blackburn made application by his petition, for a distribution among the parties named therein, being next of kin of the intestate; one of the counsel for complainants appeared in Court, and asked a postponement of the matter, alleging that it was a surprise upon them, and that his colleague Avas absent. Upon his application, the Orphans’ Court, fixed the 10th of March for a hearing. On that day, the counsel for both parties appeared, the merits of the petition were fully discussed, and after argument the Court passed the order directing distribution. In view of these facts, it cannot be said that the order was passed without notice, or Avithout being heard, and without the opportunity of appealing to another tribunal, if aggrieved.
The voluntary appearance of a party to a suit or proceeding, must be considered as a Avaiver of formal notice. 2 Starkie on Evidence, part 2, page 90. This Court in Balch vs. Zentmeyer, 11 G. & J., 267, decided, that the appellant could not object to the passage of a decretal order, in a case, because he appeared and contested the same.
[243]*243Fully recognizing the general rule of law, that no judgment is to be pronounced against a party, without an opportunity of being heard, there is nothing in the record before us, which makes- the order of the 10th of March, obnoxious to this cardinal principle in the administration of justice. But it is also insisted, that the Orphans’ Court was without jurisdiction in the matter of the distribution, inasmuch as the complainants had instituted suits in the Circuit Court, for Prince George’s county, against the administration bond of Blackburn, claiming to be entitled, as next of kin of David Oraufurd. This question was definitely decided in the former appeal, and is therefore “res adjudícala.” 22 Md. 465. In that case the Court, said, that the 230th and 231st sections, of Article 93 of the Code, “ plainly confer authority upon the Orphans’ Court, to hear and determine the question who are next of kin, and to decide between parties claiming adversely to each other, and determine which of them are next of kin, entitled to distribution.” If the judgment of the Orphans’ Court was erroneous, “
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Robinson, J.,
delivered the opinion of this Court.
The preliminary questions, raised upon the state of the pleadings in this cause, were correctly decided by the Special Judge, for the reasons assigned by him, in the able and learned opinion, filed in the Court below. It is well established, that a party may either expressly or impliedly, waive a right or advantage, which he might have enforced in proper time and manner. This principle, recognized alike by Courts of Law and Equity, applies with peculiar force to this case. The bill was filed in April; 1863, and the answer, in May, following. Upon the prayer of Blackburn, one of the defendants who did swear to the answer, a day was set apart for the hearing. At the time designated, objection was made by the complainants to the,order setting the cause down for a hearing, and another day was fixed. Again the hearing was postponed, and the defendants appealed from the order, granting the injunction. In the appellate Court, no objection was made to the answer, although if made, the appeal would have been dismissed. Keighler vs. The Savage Manufacturing Co., 12 Md. Rep., 412. The order granting the injunction was affirmed, and the cause remanded. Upon the petition of Blackburn it was reinstated, a day fixed for the hearing, and leave given to take proof. Both parties proceeded to take evidence, giving notice to each other. New parties, complainants and defendants, were made, and other proceedings had; and on the 21st of November, two years and a half from the filing of the answer, on the day set apart for the hearing, exceptions to the answer, for the first time were taken. From all these proceedings, we cannot escape the conclusion, that both parties regarded the issues as fairly made, and that the cause was to be heard on its.merits, free from any technical objections to the manner in which the defence was presented. To permit exceptions to be filed to the answer at this stage of the cause, would be to grant not only an indulgence unreasonable in itself, and to encourage vexatious delays in the prosecution of suits, but it would be manifestly unjust to the de[241]*241fendants who have incurred the expense of taking proof, upon the well grounded belief, that the ease was to be heard upon its merits.
The cases of Gibson vs. Tilton, 1 Bland, 353, and Salmon vs. Claggett, 3 Bland, 126, relied on by counsel for appellants, are not in conflict with these views. These cases were decided previous to the passage of the Acts of 1835, chapters 346 and 380, authorizing parties to take proof, and when on a motion to dissolve an injunction, the Court was confined absolutely to the bill and answer. The motion, therefore, in the language of the Chancellor, “in its very nature was founded upon the correctness and sufficiency of the answer.” In such a case, the defendant could not object to the filing of exceptions to the answer, at the hearing, because “having planted himself upon the sufficiency of his answer, at that time and for that purpose, he stands pledged to sustain it in all respects; or he must fail in his motion.” In this case, therefore, the answer must be taken free from all objections, either on account ot “ irregularity or insufficiency; ” and being in our opinion, responsive to all the material allegations in the bill, the burden of proof rests with the complainants. How far the evidence entitles them to the relief prayed, is the next question to be considered. If entitled, it must be upon the faith of an agreement, alleged in the bill to have been made by Blackburn, on the 20th January, 1863, by which he was to bring into the Orphans’ Court, all the property unadministered, to be invested by said Court, pending the litigation between the parties, touching the title to said property; and the fraudulent evasion of this agreement, by the subsequent petition of Blackburn, and the order of the Orphans’ Court, passed thereon, on the 10th of March, directing the distribution to be made. In the former appeal, in this cause, from the order granting the injunction, this Court decided “ that the order of the 10th of March, was passed by the Orphans’ Court, upon a matter within its jurisdiction, and could not be impeached collaterally, except on the ground that there was such impro[242]*242priety in the action of the Court as would vitiate it; such as want of notice to the parties, or collusion with the administrator, or that it was obtained by fraud, or imposition.”
After a careful examination of all the evidence, it is our opinion, that the allegation in the bill, as to the agreement of the 20th January, and its fraudulent evasion, by the order of the 10th of March, has not been sustained by that weight of evidence, required by the rules of law. If so, the order of the 10th of March, stands unimpeached on the gi’ound of “fraud, imposition or collusion with the administrator.” But it is insisted in the next place, that this order was passed without notice. It is true it' does not appear that a formal summons was issued, but it cannot be denied, that these complainants from the 20th of January, 1860, to the passage of the order of the 10th of March, 1863, were in the Orphans’ Court, asserting at various times, their claims as next of kin of Dr. Craufurd. On the 27th of February, when Blackburn made application by his petition, for a distribution among the parties named therein, being next of kin of the intestate; one of the counsel for complainants appeared in Court, and asked a postponement of the matter, alleging that it was a surprise upon them, and that his colleague Avas absent. Upon his application, the Orphans’ Court, fixed the 10th of March for a hearing. On that day, the counsel for both parties appeared, the merits of the petition were fully discussed, and after argument the Court passed the order directing distribution. In view of these facts, it cannot be said that the order was passed without notice, or Avithout being heard, and without the opportunity of appealing to another tribunal, if aggrieved.
The voluntary appearance of a party to a suit or proceeding, must be considered as a Avaiver of formal notice. 2 Starkie on Evidence, part 2, page 90. This Court in Balch vs. Zentmeyer, 11 G. & J., 267, decided, that the appellant could not object to the passage of a decretal order, in a case, because he appeared and contested the same.
[243]*243Fully recognizing the general rule of law, that no judgment is to be pronounced against a party, without an opportunity of being heard, there is nothing in the record before us, which makes- the order of the 10th of March, obnoxious to this cardinal principle in the administration of justice. But it is also insisted, that the Orphans’ Court was without jurisdiction in the matter of the distribution, inasmuch as the complainants had instituted suits in the Circuit Court, for Prince George’s county, against the administration bond of Blackburn, claiming to be entitled, as next of kin of David Oraufurd. This question was definitely decided in the former appeal, and is therefore “res adjudícala.” 22 Md. 465. In that case the Court, said, that the 230th and 231st sections, of Article 93 of the Code, “ plainly confer authority upon the Orphans’ Court, to hear and determine the question who are next of kin, and to decide between parties claiming adversely to each other, and determine which of them are next of kin, entitled to distribution.” If the judgment of the Orphans’ Court was erroneous, “ the remedy of the parties aggrieved, was by an appeal to have it reviewed and reversed.” It is no answer to say, that an appeal in this case would have been of no avail, because the record would not have disclosed the facts, upon which the complainants base their claim. It was their right to have demanded plenary proceedings; or if preferring another tribunal, to pass upon the matter, to have caused issues to be sent to the Circuit Court for trial. Because they did not do this, can afford no reason why a Court of Equity should interfere by writ of injunction, to restrain the execution of an order, passed by the Orphans’ Court upon a matter within its jurisdiction.
We also concur with the Special Judge, in overruling the exceptions to the proof taken by the defendants. The evidence was taken under the Act of 1861, chapter, 32, which empowers the Court, to order testimony to be taken before such persons, and upon such notice, and in such maimer, as the Court in its discretion may direct. Judge Brent’s order [244]*244of the 14th of September, “ gave leave to the parties to take depositions before one of the standing commissioners of the Court, or a justice of the peace, after such notice.” We concur with the Judge below, “that this form of taking evidence, is somewhat summary in its character, and free from many of the formal rules, which might apply to" testimony taken under a commission in the regular way.” The evidence was taken after due notice, and we think in conformity with the order of the Court.
(Decided 13th February, 1868.)
Decree affirmed, bill dismissed, and costs to be paid by the administrator of David Oraufurd.
Miller, J., dissented.