Porter v. Timanus

Bartol, J., delivered the opinion of this court. This is an appeal taken on the 6th day of March 1855, from several orders and decrees of the orphans court for Howard county. The record shows that there were two orders passed on the 2nd of January 1855. These are not open for review under this appeal, and as to them the appeal must be dismissed, on the ground that it was not taken in thirty days, as required by the act of 1818, ch. 204, sec. 1.

The words of the act are: “Provided such appeal be made within thirty days after such decree, order, decision or judgment.” One of the orders passed on the 2nd day of January 1855, required the appellant to bring into court on or before the 16th day of January 1855, the sum of $3007.28, being the balance appearing to be due on the last account passed therein by her. On the 20th day of February 1855, another order was passed requiring the executrix “to bring into this court, under an order of said court of the 2nd day of January 1855, on or before the 6th day of March 1855, the sum of $3007.28, being the balance appearing to be due on the last account passed therein by her, otherwise this court will revoke the letters of said executrix, and appoint an administrator from among the legal heirs.” And on the 6th of March, the day limited in the previous order for the money to be brought into court, the executrix having failed to comply, the said court passed an order revoking her letters, and appointing an administrator in hef place. The appeal was taken within thirty days after these last two orders, and would bring them before us for review, if they were-of such a nature as to be proper ground for appeal, But this court has decided, in Ex-parte Shipley & Wife, 4 Md. Rep., 496 , that, under the act of 1831, ch. 315, sec. 4, the orphans court is clothed with a discretion to pass such orders, and when it has passed upon such an application, its decision js final, and no appeal will lie. It is true that the power vested in the orphans court by the act of 1831, is to be exercised with a sound, legal discretion, and not capriciously or arbitrarily.

And in the case before us, even if it were proper to entertain ²⁹³ the inquiry, we can discover no evidence of such arbitrary exercise of the discretionary power, as alleged by the appellant’s counsel. It is objected that the order of the 20th of February was erroneous, because it was founded on the order of the 2nd of January, which, it is alleged, ordered the fund to be