McCall-dinning Co. v. Hoblitzell

Offutt, J., delivered the opinion of the Court. The appellee' has moved to dismiss the appeal in this case on two grounds, one that the judgment from which it was taken has -been entered “settled and 'Satisfied,” and the other that it was taken without the authority of the appellant. The second ground has little merit. ⁶⁰³ The appeal was taken May 24th, 1923, and the motion to dismiss filed in this Court on October 23rd, 1923. The appellant therefore had five months in which it could have dismissed the appeal, if it had desired to doi so, on the ground that it was entered without authority, but it took no such action.

It is. the only person who can assert that the appeal is without its authority, since it hardly lies, within the power of the appellee tot question the relations existing between the appellant and its counsel, and until the appellant suggests in some appropriate manner to the Court that the appeal was entered without its consent or authority, it will be assumed that the docket entries showing! that the appeal was for it and on its behalf were correct, and that the attorney ordering; the appeal acted within his authority. 6 C. J. 631. The first ground assigned however has more force. It appears, from a certified copy of the docket entries, that the judgment, from which this, appeal was taken has been entered “settled and satisfied” in the Superior Court of Baltimore City where the case- was tried and that there- is no longer any controversy between the parties as to the subject, matter of this proceeding, but that all differences between them as to it have been settled. Under such circumstances!, unless there is something peculiar or exceptional in the nature of this case which will take it out of the operation of the general rule, it will have to- be dismissed.

The gpneral rule, as. stated in 4 C. J. 579, is: “When it appears that there has been .a, valid settlement or adjustment by the parties of all their rights and differences respecting the subject matter of the- controversy, the appeal will he dismissed, even after the cause has.- been argued and submitted, o-r even though the appellant was. induced by fraud to settle the litigation, where he fails to return, or to offer to return, the consideration.” That statement of the rule is obviously sound, and the principles announced were- approved by this Court in Syfer v. Spence, 103 Md. 66 , and there is nothing in the facts or circum ⁶⁰⁴ .stances of this case apparent on the face of the record before us sufficient to except it from the operation of that rule. Tbe facts of tbe case are in substance these: It is intimated that William H. Hoblitzell had a judgment against William F. Shinnick for $1,431.43. The record itself does not show anything in connection with the judgment hut what can he inferred from this statement: “(Attachment on judgment debt, $1,431.43, with interest from 22nd August, 1905, and costs. Writ issued on usual form).” For the purposes of'this statement however, it will he assumed that there was a judgment against Shinnick in favor of Hoblitzell.

Shin-nick operated under various trade names, two of which were respectively the Independent Stevedore Company and William F. Shinnick & Company, Inc. As the Independent Stevedore Company, he contracted to> render certain services to the owners