Meloy v. Squires

Bartol, C. J., delivered the opinion of the Court. In this record there are no fewer than seven appeals. Some of them from the orders of the Circuit Court passed under the Act of 1864, ch. 322, striking out appeals ; and • some of them from the orders of the Court passed in the principal case. Motions have been made in this Court to dismiss several of these appeals, and the first questions to he disposed of arise upon these motions ; for it is necessary to determine definitely which of these numerous appeals are really before us.

In order to settle this preliminary question, we must go somewhat into the history of the case, stating with some particularity the proceedings in the Circuit Court. The cause originated in a proceeding for the execution of a power of sale, contained in a deed of trust from Wm. H. Squires and wife to M. William Beveridge, trustee, dated August 1th 1861, made to secure the payment of $6500, due from the grantor to John E. Webb. The trustee reported ³⁸⁰ the sale of the property made to Wm.

H. Squires for $6500. An “ order of ratification nisi ” was passed on the 18th day of April 1872. Exceptions were filed to the ratification of the sale, testimony was taken, and on the 24th day of April 1873, an order was passed finally ratifying the sale ; from this order an appeal was prayed hy Meloy, trustee, on the 10th day of June 1873, who on the same day filed his' bond, which was duly approved, and on the 14th day of the same month, filed the required affidavit, “that the appeal was not taken for delay.” On the 6th day of January 1874, the transcript of the record not having been transmitted to the Court of Appeals, although more than six months had elapsed after the appeal had been prayed; a petition was filed in this Court hy the appellee, setting forth the facts, alleging that the delay was owing to the laches and neglect of the appellant, and praying this Court to dismiss the said appeal; whereupon this Court dismissed the petition for the reasons stated in the opinion then filed, which were substantially, that the relief sought by the petitioner might be had by application to the Circuit Court from which the appeal was taken, under the Act of 1864, ch. 322, ( 39 Md., 175 .) In pursuance of this suggestion, the appellee, on the 19th day of January 1874, filed a petition in the Circuit Court praying that the said appeal of the 10th of June 1873, should be dismissed, because of the laches and delay of the appellant in not causing the transcript of the record to be transmitted to the Court of Appeals within six months, as required by law. This petition being set down for hearing, certain depositions were taken, and on the 23rd day of January 1874, an order was passed, striking out the appeal which had’been taken on the 10th of June 1873.

From this order an appeal was taken on the 23rd of January 1874. On the 20th day of January 1874, another appeal was entered from the order of April 24th 1873, ratifying the sale, and on the 24th day of January 1874, another appeal was taken from the ³⁸¹ same order of April 24th 1873. With respect to the order of January 23rd 1874, striking out the appeal of June 10th 1873, we are of opinion that the last mentioned order ought to be affirmed. By the Act of 1864, ch. 322, (sup. to Code, 16,) power and jurisdiction was given to the Circuit Courts to strike out an appeal, where by the laches and delay of the appellant, there has been a failure of the appellant to cause the transcript of the record to be transmitted to the Court of Appeals within the time required by law.

An examination of the facts as disclosed by the record has satisfied us that the delay in this case was through the fault or omission of the appellant. A question has been raised upon the construction of the Act of 1864. By that Act it was required that the record should be sent to the Court of Appeals within nine months after the appeal has been entered, and the Circuit Court from which the appeal is taken, was authorized to strike out the entry of appeal, if through the neglect or omission of the appellant, the record shall not be sent up in nine months. By the “ Rules and Regulations respecting Appeals,” adopted by this Court, ( 29 Md., 1 , &c.,) which, under the Constitution, Art. 4, sec. 18, have the force of law, the transcripts in appeals from Courts of Equity are required “to be transmitted within six months after the appeal prayed.” (Rule 10, 29 Md., 4 .) The effect of this Rule was to modify, to that extent, the Act of 1864, ch. 322, changing the time allowed for transmitting the record, from nine months to six months.

This was decided by this Court, on the petition to dismiss, in this case at Oct. Term 1873, before referred to; and in the same opinion then filed, it was said that the