McAvoy v. Renehan

Urner, J., delivered the opinion of the Court. This is a proceeding hy a distributee, under section 243 of Article 93 of the Code, charging an administrator with concealment of assets, and the latter has appealed from the refusal of the Orphans’ Court to receive his answer and grant his application for issues to be sent tó a Court of law for trial. There is a motion to dismiss the appeal on the ground that the exclusive right of appellate review in a case of this nature is vested by statute in the Circuit Court of the county in which the suit is pending. In opposition to the motion to dismiss it is contended that the Orphans’ Court was without jursdiction to take the action we are asked to reverse and that an appeal therefore lies to this Court.

Upon the filing of the petition against the administrator an order was passed requiring him .to appear on a designated date to answer the petition to the end that the Court might consider its allegations and pass a proper decree in the premises. On the appointed day one of the counsel for the administrator appeared and applied for a continuance upon the ground that he and his associate had not had an opportunity to confer with their client. This application was denied, and the Court thereupon proceeded to hear testimony on behalf of the petitioner. The counsel for the respondent, upon the refusal of his request for a postponement, declined to participate in the hearing and retired from the Court, but later duiing the session he returned and cross-examined one of the witnesses.

Before the examination was concluded a recess was taken, and when the Court reconvened an answer was filed on behalf of the administrator denying generally the averments of the petition and praying for issues to the Circuit Court. A motion that this be not received was granted. An adjournment then occurred during which an unsuccessful application was made to the Circuit Court for a mandamus to compel the Orphans’ Court to comply with ³³⁵ the requisition for issues. When the hearing was resumed in the latter Court the administrator presented a more formal answer than the first, concluding with a renewal of his demand for issues to he tried by a jury, hut an objection to its reception was made and sustained.

From this and the preceding adverse action the appeal now before ns was immediately entered. The hearing then proceeded, but without participation by the appellant. An order was eventually passed requiring the administrator to file another and true inventory of the estate and to report under oath what disposition he had made of the-assets alleged to have been concealed and what amount he had realized from any he may have sold, or, as an alternative provision, that he bring into Court a specified sum of money for distribution. There has been no appeal from this order.

The sole question, therefore, to be determined on the motion to dismiss is whether this Court has jurisdiction to entertain an appeal from the refusal of an Orphans’ Oourt to receive an answer containing a demand for issues in a proceeding like the present. It is provided that: “If upon the answer to any petition or bill filed” in such a case “either party shall require it, the Court shall cause an issue or issues to he made up and sent to the Circuit Court for the county, or the Superior Court of Baltimore City, the Court of Common Pleas, or the Baltimore City Court, as the case may he, to be there tried and disposed of as other issnes from the Orphans’ Oourt; and either party to such hill or petition may appeal to the Circuit Court for the county or the Superior Court of Baltimore City.” Code, Article 93, Section 244. It has been held that the appeal thus specially prescribed for this class of cases is exclusive of the general right of appeal to this Court from orders of Orphans’ Courts under section 60 of Article 5 of the Code, which provides that: “Froin all decrees, orders, decisions and judgments, made by the Orphans’ Court, the party who may deem himself aggrieved by such decree, order,