Ashton v. Ashton

Brent, J., delivered the opinion of the Court. A motion has been made to dismiss the appeal in this case, upon the ground that it was taken after the time limited by law for appeals in equity. The decree in the case was passed on the 23d day of November, 1855, and the appeal was taken on the 10th day of February, 1870. At this latter date the appellant, a few months after his arrival at age, filed under oath his petition for an appeal, alleging that the decree ■“ was obtained by surprise and fraud which have only come to his knowledge since the 28th day of December, 1869.” The proceedings in the case had been taken against him during his minority, — his appearance as defendant being by a guardian ad litem, duly appointed under a commision issued for that purpose.

The time, within which appeals are allowed from decrees and orders in equity, is regulated by the 20th section of Article 5 of the Code. It provides that all appeals shall be ⁵⁰² taken within nine months from the time of making such decree or order and not afterwards, “ unless it shall be alleged on oath that such order was obtained by fraud or mistake.” In the case of Oliver vs. Palmer & Hamilton, 11 G. & J., 138 , a similar provision in the 14th section of the Act of 1826, ch. 200, was construed to give the right of appeal at any time after the decree or order was passed, if the party praying it files an affidavit that the decree or order appealed from was obtained by fraud or mistake — with the limitation however that such appeal must be taken within nine months after ihe discovery of the fraud or'mistake. Giving to the section in the Code the same construction, it is very clear that the appellant has brought himself Avithin its exception. He has made oath that the decree Avas obtained by fraud, and that he had no knoAvledge of it until within less than íavo months before the appeal Avas prayed.

The motion to dismiss must therefore be overruled. The only, effect of the allegation of fraud, in the petition of the appellant for an appeal, is to bring the case before us upon appeal. It opens no neAV question, and cannot present anything for our revieAV and decision, which is outside of the record of the case as it was at the time the decree and orders appealed from were passed by the Court beloAV. The case is before us like any other appeal taken in time, and is subject to the same Jaws and rules that regulate the hearing of appeals by this Court. .The objections urged at the argument on the part of the appellant,-that the complainants had no standing in Court as against him; that it Avas immaterial to them whether it Avas for his interest or not that his land should be sold; that the bill Avas not filed by them, or either of them, as his guardian or prochein ami, and that it appears from the a Averments of the bill that the legacies Avere not due them by his co-defendant when their bill Avas filed, present questions of jurisdiction, and cannot be heard- by this Court unless it appears by the record that such objections Avere made in the Court below. ⁵⁰³ As the record does not show any such objections, we are precluded from passing upon them by the very stringent language of section 27 of Article 5, of the Code.

It provides that “no defendant to a suit in equity, in which an appeal may be taken, shall make any objections to the jurisdiction of the Court below, unless it shall appear by the record that such objection was made in said Court.” The same is to be said in regard to the averments in the bill, the admissibility of evidence, and the objection to the auditor’s report, which was finally ratified by the Court' in August, 1864. Section 26 of Art. 5 of the Code, as amended and reenacted iri 1861 by eh. 33, provides that “ On an appeal from a Court of Equity no objection * * * to the admissibility of evidence or to the sufficiency of the averments of the bill or petition, or to any account stated and reported in said cause, shall be made in the Court of Appeals, unless it shall appear by the record that such objection