Gray v. Veirs

Brent, J., delivered the opinion of the Court. The bill in this case was filed by the appellee in March, 1867, and prays for the sale of certain lands for the payment of the purchase money due thereon from the appellant to the appellee. At the following May term of the Court the appellant, having been returned summoned, entered his appearance by solicitor, but did not answer. At the next August term, the appellant still failing to answer, an interlocutory decree was passed, and a commission ex parte issued to take proof.

On the 23d of September the commission and proof taken under it were returned, and on the same day an order was passed setting down the case for final hearing at October term, and on the 25th of October it was finally heard and a decree passed for the sale of the land. From this decree an appeal has been taken, and two grounds of error are alleged by the appellant. The first ground is, that the order setting down the case for final hearing, having been passed on the day of the return of the commission to take testimony, was in violation of section 100 of Art. 16 of the Code, which provides that “ such cases may be set down for final hearing after thirty days from the return of the commission.” We do not understand the language of this law as referring to the time of passing the order setting down the case. Its plain and obvious meaning and purpose are to prohibit a final hearing until after thirty days, and to that only the limitation of time, fixed by it, is to be applied.

The mere order setting down the case was unimportant. It could as well have been passed on the very day of the final hearing. It concluded no rights, between the ²¹ parties, and imposed no additional restrictions upon the defendant, if he liad desired to come in before final hearing and by answer or otherwise take such proceedings as might have been considered proper and necessary to protect his interest. The party defendant still had his thirty days in Court, in no manner affected by the order.

The case in 12 G. & J., 83 , relied upon by the appellant, does not support his view. The decree in that case was reversed, not because the order setting down the case for hearing had been irregularly passed, but because the case was finally heard, and the decree signed before the time had expired in which the testimony was required to lie in Court. And so in this case, if the final hearing had taken place before the expiration of thirty days from the return of the commission, the decree would have been irregular and so held to be upon appeal. But as the final hearing was not had until after that period of time, we think the statute has been fully gratified.

The second ground of objection to the decree is, that the proof does not show that the appellee had procured, as he stipulated, in the agreement of sale filed as an exhibit with the bill, ho would do, a good title to the land sold to the appellant. The outstanding title which he was to procure, was that of James M. and John M. Kilgour. It is conceded that the title of James M. had been conveyed by a deed in the ordinary form, but it