Bell v. Shifflett

Per Curiam. The questions raised by this appeal are procedural and not substantive, and the facts can be briefly summarized. On 21 September 1964 the appellees, Suttie Shifflett and Mary Shifflett, entered into a contract for the sale of property owned by the Shiffletts in Montgomery County to Conley Insurance Agency, Inc. for $40,000, subject, however, to rezoning to be obtained at the expense of the purchaser. Settlement was to be made 15 days after rezoning, at which time $23,000 was to be paid in cash, and the balance of the purchase price was to be secured by a second deed of trust on the property, having a term of 15 years, with interest at Zy2%.

Rezoning acceptable to the purchasers had been accomplished on 14 September 1965, at which time the purchasers attempted to effect a reduction in the purchase price, to which the Shiffletts declined to agree. On 7 October 1965 the appellants in the case before us (who had succeeded to the rights of the contract purchaser by successive assignments) entered suit for specific performance in the Circuit Court for Montgomery County. The Shiffletts failed to answer. On 18 February 1966 a decree pro confesso was entered against them; testimony was taken before an examiner; and on 6 June 1966 a decree was entered.

On 18 August 1966, the Shiffletts filed a petition to vacate the decree; the purchasers answered; and on 23 January 1967, after a hearing in open court, the decree of 6 June 1966 was vacated. The record discloses that the order appealed from was contained in an oral opinion delivered from the bench at the con ¹⁰⁶ elusion of the hearing on the motion to vacate. A notation was made on the docket but no written order appears to have been entered. We have previously held that an appeal will lie in equity only from a final decree or an order in the nature of a final decree entered by a court of equity, which presupposes a written decree or order, and not from the opinion of the court.

Kennedy v. Foley, 240 Md. 615 , 214 A. 2d 815 (1965) ; Brenneman v. Roth, 212 Md. 491, 497 , 130 A. 2d 301 (1957); Phillips v. Pearson, 27 Md. 242 (1867). See also Miller, Maryland Equity Procedure (1897), § 260 at 325; Maryland Code (1957) Art. 5, § 6; compare Middleman v. Md.-Nat. Comm., 232 Md. 285 , 192 A. 2d 782 (1963) with McGonigal v. Plummer, 30 Md. 422 (1869). We have held that an appeal taken under other circumstances may be the subject of a motion to dismiss.

Hobbs v. Payne, 127 Md. 288 , 96 A. 522 (1915). We have also taken the position that this Court need not necessarily dismiss such an appeal, if it appears that a dismissal is not in the interest of justice. Keystone Eng. Corp. v. Sutter, 196 Md. 620 , 78 A. 2d 191 (1951) ; Kendall Lumber Co. v. State, 132 Md. 93 , 103 A. 141 (1918).

The appellants contend that the decree of 6 June 1966 had been enrolled 30 days after entry, and that the lower court was without power to vacate an enrolled decree. In support of this contention, they cite Maryland Rule 625 a. 1 Since the bill for specific performance had been