Ed Jacobsen, Jr., Inc. v. Barrick

⁵⁰⁹ Marbury, J., delivered the opinion of the Court. Property of the appellant, Ed Jacobsen, Jr., Inc. (Jacob-sen), encumbered by a mortgage from Robert W. Russell, his wife Margaret T. Russell, and Jacobsen to Thomas J. Kiriakou and Alice L. Kiriakou securing a note payable to the Kiriakous and assigned to the appellee, Samuel W. Barrick, for the purpose of foreclosure, was purchased by the Kiriakous at a foreclosure sale after default had occurred under the terms of the mortgage. On March 12, 1968, the Circuit Court for Frederick County issued an order nisi which provided that said sale would be finally ratified and confirmed on the 5th day of April, 1968, unless cause to the contrary be shown before said date. The final order of ratification of sale was signed by Judge Schnauffer and filed at 11:00 a.m. on April 5, 1968.

Later that same day Jacobsen filed an objection to the ratification of sale and the appellee Barrick responded with a motion ne recipiatur. Subsequently, Jacobsen filed a petition to revoke the order of ratification of sale and Barrick filed an answer. On April 29, 1968, the Circuit Court held a hearing at which it considered the motion ne recipiatur, the objection to the ratification of sale, the petition to revoke the ratification and the answer. At the conclusion of the hearing the court granted the motion ne recipiatur and refused to accept the appellant’s petition.

From this adverse ruling appellant has appealed. Appellant further noted an appeal from a June 5, 1968, order ratifying the auditor’s report. During the pendency of these appeals on July 5, 1968, the appellees Kiriakous obtained a deficiency decree against the appellant and the Russells in the amount of $108,498.57. On September 19, 1968, the appellees Kiriakous filed a petition for supplementary proceedings wherein Jacobsen was ordered to appear to give testimony under oath and to produce various books, accounts, papers and records.

The appellant filed a motion to strike the order regarding the supplementary proceedings which the trial court overruled on October 3, 1968. On October 8, 1968, Jacobsen made a motion for the court to reconsider its October 3 action and the same day the court denied that motion. On October 10, 1968, appellant noted two further appeals, one from the order of October 3 denying the motion to strike ⁵¹⁰ and one from the court order of October 8 denying the motion to reconsider. On October 30, 1968, a hearing was held on the petition for supplementary proceedings, and the lower court passed an order subjecting certain property of the Montgomery Development Corporation (Montgomery) to the lien of the deficiency judgment.

Appellant also noted an appeal from this order. Thus this Court must here consider five appeals in one record. On appeal Jacobsen raises four issues: 1. Where an order nisi of the circuit court states that a sale would be ratified unless cause to the contrary be shown before a day certain and objections to the ratification of sale are filed on that day certain, may a motion ne recipiatur be granted solely on the grounds that the objections were filed too late? 2.

May the circuit court in a hearing set for the purpose of determining whether a motion ne recipiatur made to the filing of objection to the ratification of sale also consider the objection to the ratification of the sale and a subsequently filed petition to revoke the ratification of sale without affording the appellant the right to produce evidence ? 3. Whether after the appellant had noted an appeal to this Court from the order of the circuit court granting a motion ne recipiatur, the circuit court had jurisdiction to enter any further judgments or orders? 4. May the court pass an order subjecting to the lien of a deficiency decree property which is in the hands of a person other than the judgment debtor without giving that person the right to be heard by the court? Considering appellant’s first point, the order nisi in question was issued on March 12, 1968, on á printed form used by the