Cannon v. Crook

Maulsby, J., delivered the opinion of the Court. In this ease a petition was filed by the appellant in the Orphans’.Court of Baltimore city, charging that the appellees had concealed certain household furniture, effects, &c., of Charles K. Camion, deceased, and had refused to deliver the same to her, his administratrix, and praying for relief, and that a citation might issue against the appellees, commanding them to appear and answer under oath. They appeared and answered, denying all concealment of property belonging to the intestate. Testimony was taken orally, anti the Court rendered a judgment dismissing the petition.

Thereupon the appellant filed a prayer of appeal, and requested that the testimony of the witnesses examined be reduced to writing. After the judgment and appeal prayed, witnesses were called, sworn and their testimony taken in open ⁴⁸⁴ Court, and reduced to writing. Though not expressly stated, it yet appears from the record that the witnesses,' so called and sworn, were the same witnesses who had been examined orally before rendition of the judgment. The Court, on the last examination, refused to permit questions to be asked and exceptions to be noted, because the same questions had not been put, and exceptions taken, on the former oral examination.

The petition was filed under section 238, of Article 93, of the Code of Public General Laws. These proceedings appear to have been regarded in the Court below as summary, and to have been so. conducted. This was erroneous. In Pegg, et al. vs. Warford, 4 Md., 385 , re-affirmed in Peters’ Adm’r vs. Peters, 20 Md., 172 , it is said, “ whenever a bill or petition is filed in the Orphans’ Court, whether or not the parties are cited to appear, if, in point of fact, they do appear and answer, the proceedings are plenary.” The distinction between summary proceedings, under section 40, of Article 5, of the Code, and plenary proceedings, under sections 249, 250, of Article 93, is clear.

The test of plenary proceedings is whether a petition or bill is filed, and the parties against whom it is filed appear and answer. Summary, are proceedings ini the Orphans’ Court without bill or petition and answer, as in the matter of an account or claim against the estate of a testator or intestate presented for passage, and like matters. In such matters the Court is authorized, and sometimes required, to hear testimony, and such testimony is to be taken orally, and, on immediate notification by a party of an intention to appeal from the decree, order, judgment or decision, the testimony is to be reduced to writing, under the direction of the Court, from its own notes, or such memoranda as it may elect; or in case the testimony may not bejrecollected by the Court, and it have no other means of stating it correctly, the witness, or witnesses, may be re-called for the purpose of refreshing the recollection of the Court. In other words, the testimony is to be reduced to writing in the same manner in which a Court of Law is authorized and required ⁴⁸⁵ to state iu a bill of exceptions, testimony produced before it.

Whatever cost, if any, may be incurred in the course of reducing to writing the testimony, shall be borne, in the first instance, by the party at whoso request it may be done. But in no case can it be permissible that testimony shall be