Levy v. Levy

Grason, J., delivered the opinion of this Court. This is an appeal from two orders, passed by the Orphans’ Coiirt of Baltimore city, on the 12th day of June, 1867; the one for payment of costs by the appellees, and the other requiring the appellants to ansvur a petition, filed in said Orphans’ Court by the appellees, on the 11th day of May, in the year 1867. By the 250th section of the 93d Art. of the Code, the Orphans’ Comt is vested -with discretionary power to award costs and enforce their payment; and this Court has decided that a Court of law, to which issues are sent by the Orphans’ Court, cannot enter judgment for costs, but that the established practice, in such cases, is to certify to the Orphans’ Court the verdict and ³⁰ the costs, leaving for that Court to enter the proper judgment. Browne vs. Browne, et al., 22 Md. Rep., 116 .

It appears from the record that the Orphans’ Court had been certified of the dismissal of their issues by the appellees, and, in ordering the payment of the costs by them, the said Court was exercising a power vested in it by law, and we can discover no error in passing said order. It is contended by the appellants, that the second petition of the appellees, filed 11th May, 1867, should have been dismissed by the Orphans’ Court upon the ground that the dismissal of their issues by the appellees, in the Superior Court of Baltimore city, was an abandonment of the contest and the cause, and that they are thereby barred from again contesting the will mentioned in the record. In support of this position they rely upon the cases of Pegg, et al., vs. Warford, 4 Md. Rep., 385 ; Cecil vs. Cecil, et al., 19 Md. Rep., 78 & 79; Price vs. Taylor, 21 Md. Rep., 356 ; and Price vs. Moore, et al.,, 21 Md. Rep., 366 . In the case of Pegg, et al., vs. Warford, two caveats were filed against the will, and two sets of issues, upon the application of different parties, had been sent to a Court of law for trial, and some months afterwards a third caveat was filed by a third party.

Pegg then filed a petition to the Orphans’ Court, asking a revocation and remodelling of the issues which had been granted, and a joinder of all the caveators, &o., which petition was dismissed, and Pegg appealed. Upon that appeal this Court decided among other things that, after issues are sent to a Court of law for trial, the Orphans’ Court cannot revoke or remodel them, and that, when an issue is sent, upon the petition of one party, the same issue cannot be granted on the petition of another party to be tried before another jury; for the reason that there might be different verdicts rendered. In no part of the decision is it intimated by the Court, that a dismissal of issues would bar the party from further proceedings in the Orphans’ Court. On the contrary, we may fairly infer, from the language used by the Court, that they were of opinion, that the dismissal would ³¹ not operate as a bar; for they say, that “ when the question has been once fairly answered by a jury, it ought to be considered as definitively settled.” From this language the inference is plain, that it was the opinion of the Court, that a dismissal of issues would not operate as a bar to further proceedings.

The case of Cecil and Cecil presents the question whether a distributee is barred by a proceeding in the Orphans’ Court, between his co-distributees, and to which he was not a party on the record. The Court say that “ in matters in rem, such as ike factum of a will, where solemn proof has been resorted to, the decisions are final, if not appealed from; and issues, involving the same question, will not be sent a second time;” and the case of Pegg and Warford is cited in support of these positions. Construing the language, used in Cecil and Cecil, by the light thrown upon it by Pegg and Warford, it must bo intended to mean, that issues, involving the same questions will not be sent a second time, after having been once fairly answered by the verdict of a jury. This view of the court’s meaning is made still more apparent by reference to another part of their opinion, in which they say that “justice requires that every case be once fairly and impartially tried.” In the case under consideration no trial ever took place and no judgment was over rendered; and therefore no bar has been interposed to further proceedings.

In the cases of Price vs. Taylor and Price vs. Moore the Court say that Mrs. Taylor, having dismissed her issues, thereby abandoned the contest; and this is relied upon by the appellants as meaning a final abandonment of her cause, which would bar her from further proceedings. Wo think that such a construction cannot fairly be put upon the language used, but that the Court intended nothing more than, that, by dismissing the issues, Mrs. Taylor abandoned her then pending contest. This interpretation of their language is in accordance with the settled law, that a party may, at any