Kennedy v. Foley, Receiver

McWilliams, J., delivered the opinion of the Court. Incident to the liquidation of three insolvent corporations the trial court had occasion to consider the validity of certain chattel mortgage liens of American Security and Trust Company (American) and Blakeley Bank and Trust Company (Blakeley). On 23 March 1965, at the conclusion of a two day hearing, the court, in respect of American’s lien, said: “The Court finds from all of the evidence that the American Security and Trust holds a valid chattel mortgage on the press described therein. No question in my mind whatsoever.” Counsel for American was thereupon excused and withdrew from the courtroom.

Later in the day, the court, in respect of Blakeley’s lien, said: “The Court finds from the evidence before it that the Blakeley Bank and Trust Company, Incorporated, have a valid chattel mortgage against the property described therein. It is only necessary to describe the property so that — with such particularity that it can be identified and the Court believes in this case it has been so identified.” Some time thereafter, probably the same day or the following day, entries were made on the docket as follows: “March 22, 1965 — Hearing before Judge Shook — * * * “March 23, 1965 — Hearing on petition of American Security Trust Company on validity of chattel mortgage —Court holds Petitioner has valid chattel. “March 23, 1965 — Hearing on Petition of Blakely [sic] Bank & Trust Co. (3) on validity Chattel Mortgages —Court holds all valid chattels.” Early in May 1965, counsel for appellants, 1 having in mind ⁶¹⁷ an appeal to this Court, wrote to Judge Shook, calling her attention to the fact that there were no formal orders establishing the validity of the American and Blakeley mortgages. Counsel enclosed in his letter an order which, if signed and filed, would have been sufficient for the purpose. Judge Shook acknowledged the receipt of counsel’s letter and the proposed order, adding that she had asked Mr. John Foley [the receiver] and Mr. Schwartzbach [counsel for American] to submit orders.

For some reason, unknown to us, counsel for Blakeley was overlooked. About a week later counsel for American submitted to the court an order declaring American to have a valid first lien [no mention of Blakeley was made] which was signed on 17 May 1965, dated 23 March 1965 2 and which was filed 19 May 1965. Appellants, on 26 May 1965, filed their notice of appeal from an “order signed May 17, 1965 sustaining the position of American * * *” and an “oral order from the bench [23 March 1965] sustaining the position of Blakeley * * The case is now before us on the motions of American and Blakeley to dismiss the appeal. They contend, in view of the provisions of Maryland Rule 812 requiring appeals to be taken within 30 days of the order appealed from, that more than 68 days, in the case of Blakeley, and more than 60 days, in the case of American, having expired, the appeal must be dismissed as to both.

We think the two situations here presented are controlled by Phillips v. Pearson, 27 Md. 242 (1867) and the later cases of Pocock v. Gladden, 154 Md. 249 , 140 Atl. 208 (1928), Alleghany Corp. v. Aldebaran Corp., 173 Md. 472 , 196 Atl. 418 (1938) and Sellman v. Sellman, 238 Md. 615 , 209 A. 2d 61 (1965). In Phillips the only entry on the record manifesting the action of the chancellor was an opinion concluding as follows: “Viewing the case as a whole as it is presented to me, I think this bill cannot be sustained, and must be dismissed with costs as to the defendant Pearson.” Chief Judge Bowie, for the Court, said: ⁶¹⁸ “* * * but in our judgment it can be regarded only as the opinion of the judge, to be followed by an order or decree, finally determining the rights of all the parties. “In Hagthorp v. Hook, 1 G. & J. 309 , the Chancellor, in his introductory remarks, discussed the principles which he considered applicable to the case, and in favor of the appellee, and announced his intention to decree accordingly. To enable him to do which he passed an order directing an account to be stated in accordance with his views. On appeal from the order, Judge Dorsey, delivering the opinion of this court, said it was true the Chancellor had distinctly announced what he intended to do, but his intentions formed no ground for an appeal; he might abandon or change them ad libitum.

Tt is only from what he has done, not from what he intends to do, that an appeal will lie.’ ” 27 Md. at 253-54 . “In deference to these decisions 3 we are obliged to consider the opinion of the learned judge filed in this cause as an incomplete act announcing his intentions, which he might or might not subsequently change, and not a decree or order in the nature of a decree from which an appeal will lie.” 27 Md. at 255 . In Alleghany Judge Offut considered a number of the relevant earlier decisions of this Court, including Phillips , and after declaring that the appeal must be dismissed, he said: “Appellants, however, suggest that inasmuch as the trial court in its opinion announced the conclusion that the proposed plan of consolidation violated ‘rights secured by the