Barton v. Higgins

Robinson, J., delivered the opinion of the Court. In 1858, W. S. Barton, executor of John Metcalfe, recovered judgment against Henry O. Middleton in the Circuit Court for the county'of Spotsylvania, Virginia, for the sum of §2800. Middleton died leaving real estate in Maryland, which was sold under a decree of the Circuit Court for Anne Arundel County, for the payment of his debts. On the 22nd June, 1868, Barton, executor of Metcalfe," filed in the proceedings for the sale of the real estate a copy of the judgment thus recovered by him and prayed to be allowed the same.

To this claim exceptions were filed by certain creditors, and the Court being of opinion that the letters testamentary granted in Virginia, conferred no power upon the executor to collect or administer assets belonging to the testator in this State, ratified the auditor’s account except as to the claim of Barton, executor, in regard to which final action was suspended in order that letters of administration might be taken in this State. Subsequently letters of administration were granted in this State to James R. Howison, who also filed a copy of the judgment thus recovered by Barton, executor, and prayed to be allowed the same. Exceptions were filed by the creditors to this claim, and the plea of limitations also interposed. The Court overruled the exceptions, but sustained the plea of limitations, and on the 31st December, 1873, ratified the auditor’s account, rejecting the claim of Barton, executor, upon the judgment recovered’ by him in Virginia, and also rejecting the claim of Howison, administrator, except as to the sum of §97.02.

From this order appeals were taken by Howison, administrator, and also by Barton executor, and Howison administrator, assignee of Barton. At the hearing of the case in this Court motion was made to dismiss the appeal of Barton executor, and Howison administrator, upon the ground that no appeal was ⁵⁴⁶ taken from the order of the Court of March 6th, rejecting the claim as presented by Barton, executor, within the time prescribed by the Code. This motion however.must be overruled. In no just sense can the order of March 6th, be considered as', a final order or decree.

On the contrary, by the express terms of the order final action in regard to this claim was suspended. The final order was not passed until 31st December, 1813, and on appeal from this order all previous orders passed in the cause may be reviewed by this Court. Code, Art. 6, secs. 20, 21, 22; Crawford vs. Claggett, 12 G. & J., 115 ; Dugan vs. Gittings, 3 Gill, 138 ; Ware vs. Richardson, 3 Md., 505 ; Stem vs. Cox, 16 Md., 533 ; Vickers vs. Tracey, 22 Md., 198 ; Chenowith vs. Smith, 29 Md., 18 . This brings us to the question as to whether there was error in rejecting the claim filed by Barton, executor.

We fully agree with the Court below that the letters testamentary granted in Virginia, conferred no power upon the executor to collect or administer assets due the testator in this State. But there is a wide distinction between an attempt on the part of a foreign executor to bring a suit in this State