Beilman v. Poe

Stockbridge, J., delivered the opinion of the Court. As was intimated at the hearing of this case, the appeal presented by the present record will have to be dismissed. The orders involved are two in number, but the question raised is the same in each instance. It arises in the following manner: In August, 1907, the-firm, of which the appellant was a member, brought suit in Hew York against the United Surety Company for a balance claimed to be due the plaintiffs as agents of the Surety Company.

The suit was defended by the company, which claimed a balance as due ⁴⁴⁶ it of $5,'686.88, and the litigation was still pending and undetermined when receivers were appointed for the Surety Company. This proceeding culminated in November, 1911, in the entry of a judgment in favor of the plaintiffs in that suit for $11,167.09, and from that judgment the receivers appointed by the Circuit Court of Baltimore City asked the permission of the Court to appeal. Thereupon the present appellant demurred, and the order of December 17th, 1912, overruling his demurrer is the first of the orders appealed from as presented in this record. His demurrer having been overruled, Beilman answered the petition, setting up substantially the same facts as those relied on in support of his demurrer, and the final order of December 30th, 1912, authorizing an appeal to be taken by the receivers from the judgment rendered against the company in New York, is the second' of the orders presented by this record.

Erom this brief recital it will be apparent that neither order was determinative of any right of the parties, nor was it a final order or order in the nature of a final order within the meaning of the Code (1912), Article 5, section 26; nor was either order among the appealable orders specially provided for in other sections of the same article. In Gottschalk v. Mercantile Trust Co., 102 Md. 522 , it was said: “It is not necessary at this late date to cite authorities in support of the well-settled doctrine that an appeal will not lie from an order or decree passed in the exercise of an undoubted discretion of the lower Court-; but the question whether the subject-matter of the order or decree was. within the area of the discretion of the Court which passed it, is open to examination upon an appeal in the same case, for a Court cannot improvidently extend the exercise of its discretion to matters which lie beyond its legitimate reach.” ’ And to the same effect is the decision in Emory v. Faith, 113 Md. 256 . The only question proper to be considered, therefore, is whether the matter involved was within the discretion of the ⁴⁴⁷ Circuit Court of Baltimore City. That precise question was before this'Court in the comparatively recent case of Knabe v. Johnson, 107 Md. 616 , and in the opinion delivered by J unon Pejrce he cites and adopts as applicable to a receiver the language of Judge Millek in Frey v. Shrewsbury Savings Institution, 58 Md. 151 : “A conventional trustee * * * has the right to appeal, where the order complained of affects his commissions, where he is interested as creditor in the fund tc be distributed; and where the question of the increase or diminution of the whole fund in his hands is involved, and which increase or diminution inures to the benefit- or loss of all the creditors”; and again quoting from and adopting the language of the Court in Bosworth v. Terminal Asso., 80 Fed. 969 : “The true line of demarcation we think to be this: He has the right of appeal with respect to any claim asserted by or against the estate, for therein he is the representative of the entire estate.

He has the right of appeal from any decree which affects his personal right, .for therein he has an interest. But he has not the right of appeal from a decree declaring the respective equities of parties to- the suit. He should therein be indifferent and not a partisan. His duty is to all parties in common.

He should not become the advocate of one against another.” In the present case we find a judgment rendered against the Surety Company for $11,167.09 in a suit in which the company sought to have a claim established in its favor for the sum of $5,686.88, and counsél familiar with the case advising an appeal. This was clearly a case where the