Emory v. Faith

Briscoe, J., delivered the opinion of the Court. There are two appeals in this record, one by German II. H. Emory, receiver of the firm of Arnold and Welles, and the other by the First National Bank of Wellington and other creditors of the firm. These appeals are from three separate orders passed by Circuit Court No. 2 of Baltimore City in the case of Arnold v. Welles, on the 23rd day of July, 1909, on the 15th day of October, 1909, and on the 23rd day of November, 1909, and in view of the conclusion we have reached in the case it will not be necessary to discuss them separately. ²⁵⁶ The motions to dismiss the appeals from the orders passed as stated herein cannot prevail.

The grounds for the motions to dismiss are, first, that the appeals from the order passed on the 23rd day of July, 1909, were not taken within two months from the date of the order, as provided by section 32, Article 5 of the Code, and second, because the orders of October 15th, 1909, and of November 23rd, 1909, are not final orders, or orders in the nature of final orders or decrees, within the meaning of section 26 of Article 5 of the Code. It is clear that the appeals from the order of the 23rd of November, 1909, were taken in time and that it is an appeal-able order, and this being so, it is provided by section 28, of Article 5 of the Code of Public General Laws, that on an appeal from a final decree or order all previous orders which may have been passed in the cause shall be open for revision in this Court. Davis v. Gemmell, 73 Md. 552 ; Keifer v. Reichert, 93 Md. 99 . There is no force in the contention that this Court is without authority to review the proceedings now before us because the orders appealed from (the reporter will set out these several orders appealed from in the report of the case), were passed in the exercise of an undoubted discretion by the Court below, and are not reviewable on appeal.

The case of Gottschalk v. Mercantile Trust Co., 102 Md. 523 , is an express decision on this point and against the appellee’s contention. In that case, we 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 xmdoubted 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 ²⁵⁷ lie beyond its legitimate reach.” Cecil v. Negroes, 14 Md. 68 ; Dorsey v. Dorsey, 30 Md. 522 . In re Farmers Loan and Trust Company, 129 U. S. 215 , Mr. Justice Miller in delivering the opinion of the Court said: “The other reason given why the appeal should not be granted is that the action of the Circuit Court in the case is one within its discretion.

All we have to say upon this subject is, that if it be an authority vested in the Judges of the Circuit Court, it must be exercised and governed by the principles of a judicial discretion, and the very point to be decided upon an appeal here is, whether they had such discretion, and whether they exercised it in a manner that cannot be reviewed in this Court. The question is one which in its' nature must be a subject of appeal.” “And still more, whether, in the exercise of what the Court asserts to be its discretionary power, it has invaded established rights of the petitioners 'in this case, contrary to law, in such a manner that they can have no relief except by an appeal to this Court. This is a matter eminently proper to be inquired into upon an appeal from such an order. Upon the hearing of that appeal this Court may be of opinion that the order was one proper to be made, in which case it will be affirmed.

If, however, it believes that it was an improper one, and will seriously prejudice the rights of the petitioners, it will be reversed and set aside, as it should be.” Being of opinion that all of the pending appeals are properly before us, the motions to dismiss them are therefore overruled. This brings us to a consideration of the real question in the case, and that is, can an action to recover damages for personal injuries be maintained against the receiver in this case, where the alleged negligent act was committed by Welles and Arnold, co-partners and contractors, prior to the appointment of the receiver? The facts of the case are undisputed and the question is presented in this way. On the 23rd of July, 1909, nearly ²⁵⁸ tw-o years .after the appointment of the receiver (the 14th of October, 1907,) the appellee, the plaintiff below, wqs granted leave,- upon ex-parte petition, by an order of Court, to institute an action at law against the receiver (the contractors, and employers of the plaintiff, being made co-defendants) to. recover damages for alleged personal injuries received by him while in their .employ.

Subsequent -orders of .Court, as will appear from the record, were