Bowers v. Soper

Urner, J., delivered the opinion of the Court. In the case of Shirk v. Soper et al., Trustees, 144 Md. 269 , an order ratifying a sale of certain real estate by the trustees was reversed on the ground that the sale was made for an inadequate price, but the opinion of this Court stated that the reversal would not “affect any right which the purchaser may have in the property sold under the decree.” The reason for this reservation was that no appeal bond had been filed, and the lower court had provided that the operation of the order ratifying the sale should not be stayed by the appeal. The discretionary power of the court to so limit the effect of such an appeal is expressly conferred by article 5, section 33, of the Code. In view of that statutory provision, as construed and applied in prior decisions, we were constrained to hold that the rights of the purchaser were unaffected by the reversal of the order ratifying the sale.

The question was fully discussed in the opinion, delivered by Judge Offutt, which recognized the possibility of hardships ⁶⁹⁷ resulting from the existing statute, but stated our inability to prevent such consequences of its operation. After the case had been remanded, an audit was filed accounting for and distributing the proceeds of the ratified sale which the appeal had disputed. Exceptions to thé audit were filed by Henry Shirk and James W. Bowers, as attorneys and solicitors, because of the disallowance of their claim of compensation for professional services in Mr. Shirk’s individual interest in the course of the proceedings. Mr. Shirk also, by virtue of his personal interest in the trust estate, excepted to the audit on the theory that, no title had passed to the purchaser, and, therefore, no part of the purchase money should be included in the audit for distribution.

The exceptions were overruled, and from an order ratifying the audit and directing the trustees, on their petition for instructions, to institute no proceedings ag'ainst the purchaser, an appeal was taken by the exceptants. By a motion to dismiss the appeal it is shown, without denial, that after the ratification of the audit, Mr. Shirk wrote a letter to the trustees, requesting the distribution of the money “as audited,” and that the trustees accordingly disbursed the funds. . As counsel for one of the parties, Messrs. Bowers and Shirk have no such interest in the case as entitles them to appeal from the order overruling their exceptions to the auditor’s disallowance of the fee which they claimed.

This is definitely settled by the decisions in Culbreth v. Kries, 144 Md. 497 ; Karr v. Shirk, 142 Md. 118 ; and Marshall v. Dobler & Mudge, 97 Md. 555 . Any right which Mr. Shirk may have had, in his individual capacity as a party, to appeal from the order ratifying the audit, has been waived by his request, with which the trustees complied, that the funds be distributed as the audit prescribed. Upon the plainest