Price v. Taylor

Cochran, J., delivered the opinion of this Court: In disposing of this appeal we are called upon to decide ■whether the appellee had power to dismiss the issues in this case, and if so, \yhether her order to the clerk of the Court below, directing him to make that entry, was an effective exercise of that power. These issues were made up and sent to the Superior Court, in pursuance of an order passed by the Orphans’ Court of Baltimore City, on the petition of the appellee, ■who had previously filed a caveat in that Court against the probate of the paper propounded by the appellant, as the last will and testament of Charcilla C. D. Owings, deceas•ed, by whieh order the appellee was made plaintiff and the appellant defendant. The case was subsequently removed from the Superior Court to the Circuit Court for Baltimore County. The Act of 1798, ch. 101, sub-ch. 15, sec. 17, provides, that the Orphans’ Court shall direct an issue or issues to be made up and sent to a Court of law for trial, when either ³⁶³ party to any contest upon a plenary proceeding shall require; and sub-ch. 8 sec. 20, provides, that the Court of law, to which the issues may be sent, shall have power to direct the jury, and grant a new trial, as if the issue or issues were in a suit therein instituted, and that the finding of the jury, when certified by the Court, shall be admitted and taken by the Orphans’ Court as conclusive upon the disputed matter of the issues.

The evident purpose of these provisions, was to enable either of the parties to any contest, upon plenary proceedings, to control the action, of the Court, in reference to the matter in dispute, by the finding of a jury on issues so framed as to present the subject of the contest. The duty of the Orphans’ Court to make up and transmit issues to a Court of law, when required, is imperative, and it is also bound to accept the conclusions of the jury as final, and to make them effective by proper orders or decrees. Issues are made up, not for tbe purpose of aiding tbe Court in the exercise of its judicial functions, but to enable tbe party-demanding them to ascertain, through the medium of a jury, a state of case-which the Court is hound to adopt, and to which its subsequent action must conform. In view of the purpose contemplated by the provisions of the Act authorising this mode of proceeding, we may safely assume that the Orphans’ Court bad no official interest to be sub-served by a trial of these issues, and that their subsequent disposition was a matter in regard to which it had neither right of consultation nor control.

It was said in argument, however, that the'appellee represented other parties in interest, who were entitled to protection by a trial of the-issues framed on her petition, and consequently that she had no right or power to dismiss them without trial. This proposition was presented, not as depending upon any community of interest or understanding that they were to he represented, but as a legal deduction from tbe fact that the transmission and pendency of these issues, operated to deprive them of the right of having issues to try the same ³⁶⁴ questions; and it assumes that the appellee, by thus acquiring the exclusive right to litigate the questions presented, became by implication the representative of- all parties having like interests depending on their trial. In our opinion this inference is not entirely correct. It is true that after these issues were transmitted, neither the Orphans’ Court, nor the Court to which the issues were sent, could authorise.the joinder of other parties with the appellee, and tliat, while the issues were pending in the Court below, no other, issues presenting the same questions could be granted; but it does not follow that the appellee was, in any legal sense, the representative of parties affected by these disabling conditions, or that she was bound to try the issues solely for their advantage.

Even on the theory suggested, it was impossible for the presumptive representation of their interests to continue longer than the pending issues suspended their right to contest the same matter by other issues, and testing the appellee’s right to dismiss by inferences from