Thruston v. Devecmon

30 Md. 210, 1869 Md. LEXIS 22

• Court: Court of Appeals of Maryland
• Decided: February 19, 1869
• Status: Published

Opinion

Alvey, J.,

delivered the opinion of the Court.

By the order of the 7th of July, 1866, ratifying the auditor’s first report and accounts, “no cause to the contrary having been shown,” the trustees were, by explicit terms, ordered to pay out the money in their hands, according to the audit ratified. This order the trustees could not rightfully disobey. They were the officers of the Court, exercising simply the powers conferred upon them by the previous decree of sale, which required them to bring the money into Court to be disposed of under its direction, and any order directing the application of the fund arising from the sale should have been at once respected and obeyed by the trustees, without question. This, however, one of the trustees declined to do, but made question of the order directing the application of the money in his hands, while his co-trustees were ready and willing to observe and comply with the order. Under such circumstances, the proceeding adopted by the ap-pellee to compel the non-complying trustee to pay over the money was competent and proper. 2 Md. Ch. Dec., 362.

This order, of the 7th of July, was a decretal order, or an order in the nature of a final decree. It contained no reservation of equities, or power of further direction, but was final upon the rights of the parties, and could only be dealt with as a definitive decree. Such being its character, it is sought to be revised and modified on petition, suggesting fraud and. malpractice, not in reference to obtaining the order of ratification, but in regard to the claim allowed to the appellee, and the question is, can it be done under the facts and circumstances of this case?

The term of Court at which the order was passed and filed, expired on the 9th of July, 1866, two days after the date of the order. The succeeding term commenced on the 9th of July, and expired on the first Monday of October then next. The petition of the appellant and others was not filed until the 18th October, 1866. Thus the term at which the older was passed, and the next succeeding term, were allowed to expire before proceeding taken by petition to change and modify the order of ratification. We think this petition came too late to accomplish the purpose in view.

There is no question but that during the term at which this order was passed, it remained subject to the control of the Court, and liable upon proper ground shown, by petition, to be altered, revised or entirely revoked. But after it was signed and filed, and the term had expired at which it was made, it from that time became enrolled, and, according to the general rule, was no longer subject to be called into question by mere petition. Being enrolled, it must be allowed to stand for what it purports to be on its face, until revised or reversed in a more solemn and formal manner than can be done on petition. 1 Gill & John., 393; 1 Md. Ch. Dec., 455. And the only proper modes, recognized by law, for reversing or annulling a decree or a decretal order, after enrolment, in the absence of surprise or irregularity in obtaining it, are by bill of review for errors apparent on the face of the proceedings, or for some new matter discovered since the order or decree passed, or by original bill for fraud. Tomlinson vs. McKaig, 5 Gill, 256.

The case of Oliver vs. Palmer & Hamilton, 11 Gill & John., 137, has been relied on as justifying the proceeding by petition. In that case, proceeding had taken place under the Act ■ of 1820, ch. 161, of an ex parte character, and after the decree was enrolled, a petition was filed to vacate the enrolment, upon the ground of surprise, and asking to be let in to answer to the merits. The Court of Appeals held that the party applying could be relieved on petition. That case, however, belongs to a class forming an exception to the general rule, and can have no application to a case like the one before us. There was no allegation of fraud, and the sole ground was the surprise to the defendant in obtaining the decree. • “ Had,” said the Court, “ the design been to set aside the decree for fraud, the remedy would clearly have been by bill of review, and not by petition.” In the case before us, the ground for modifying and revising the order is the alleged fraud and malpractice of the appellee; so that, according to the case relied on, the remedy is not by petition, but by bill only. Without, therefore, deciding the several other questions discussed in the argument, we must affirm the order appealed from, because it was not liable, under the facts of this case, to be reviewed on petition.

(Decided 19th February, 1869.)

Order affirmed.