Spedden v. Baltimore Refrigerating & Heating Co.

Boyd, 0. J\, delivered the opinion of the Court. This case is now before us on appeals from the order of Circuit Court No. 2 of Baltimore City, overruling exceptions filed by J. William Middendorf and Wilson P. Hey-ward, committee, and by the executors of Bobert M. Sped-den, and finally ratifying’ and confirming a sale made by the Continental Trust Company, trustee, on the 24th day of April, 1911.' At the October Term, 1911, we had before us an appeal of Bichard B. Fentress from the order of the lower Court passed on March 27th, 1911, ordering a resale of the property of the Baltimore Befrigerating and Heating; Company, which the trustee had made to the Central Securities Company- — that company having failed to comply with the terms of sale. We sustained the lower Court, and we now have before us the order ratifying the sale which was made in pursuance of the order of March 27th, and of one of April 17th, 1911 — the latter extending the time for sale from the 17th day of April (the time fixed by the order of March 27th) to April 24th.

The opinion is reported anie, page 17. 1. A motion to dismiss these appeals has been made, and we will first consider that. The ground of the motion is that the appellants failed to provide a full, fair and proper transcript of the record, proceedings and evidence in the Court below. It is contended that that is shown by the fact, (a) that acting under the instructions of the solicitors of the appellants the clerk of the lower Court did not transmit to this Court all of the testimony produced at the hear ⁴⁴⁷ ing, but omitted from the transcript all of it, except that of three witnesses specially named in the instructions of the solicitors and portions of the testimony of two other witnesses, and (b) that the only testimony ordered by the instructions to be transmitted was furnished to the clerk by the appellants’ solicitors in the shape of carbon copies which were not properly authenticated and were procured by them from an unnamed stenographer.

As intimated ai the hearing, the reasons given to sustain the motion to dismiss are under the circumstances insufficient. It was not suggested in the motion, or at the hearing, that any testimony, paper or document had been omitted from the record which was necessary for the Court to have before it. in order to properly dispose of the questions at issue. If such had been the fact the well established practice in this Court would have been — not to file a motion to dismiss the appeals but to apply for a writ of diminution, so as to have such omitted testimony, paper or document' brought before us. It was suggested that such practice would or might result in an appellant selecting a few papers or a small part' of the testimony from the record below to be transmitted to this Court, and requiring the appellee to apply for a writ of diminution, and thereby place him in the position of having to pay for the greater part, of the record.

But there are several manifest answers to that suggestion. In the first place, rule 11 of this Court (section 34 of Article ñ of the Code) makes it the duty of the clerk of the Court from which the appeal is taken, in making up the transcript of the record of equity proceedings, to omit certain papers, orders, etc., therein mentioned, “and all merely collateral proceedings not in anywise involved in the matter of appeal, and which can not be material to the hearing and decision of'the case by the Court of Appeals.” It then goes on to provide that “any party to the appeal, however, shall have the right to direct any particular part of the proceedings of the cause, that would otherwise be omitted, to be incorporated in the transcript, the clerk stating at whose instance the same is inserted, that costs may be awarded, as the matter ⁴⁴⁸ so directed to be" incorporated may be deemed material or not by the Court of Appeals.” It is therefore the duty of the clerk to omit irrelevant and immaterial matter from the record. The clerk may not always know what is irrelevant or immaterial, but when he receives instructions from a solicitor for the appellant to omit anything which he thinks should be inserted, or to include what he thinks should be omitted, he should communicate with the solicitor for the appellee, and if the solicitors of the two parties agree his course is plain, but if they differ he can consult with the Court from which the appeal is taken, or if that Court does not advise him he must act according to his best understanding of the rules of this Court, and should state in his certificate to this Court the facts — why and at whose instance he has omitted or inserted anything about which any question has been raised. The affidavit of the deputy clerk whose duty it was to superintend •the making of this transcript states that in this case he called on counsel for appellants for their instructions as to what should go in the record, and received the written instructions that are in the record, and also verbal ones to notify counsel for the appellees when the transcript was complete, so that they could examine the same for the purpose of making additions to it, if they so desired.

He followed those instructions and kept the transcript at least three days after giving notice to the counsel for appellees, before sending it to the clerk of this Court. After he had sent the record to this Court several of the counsel for appellees called at his office to examine it, but were told that it had been transmitted, and were also informed that counsel for appellants had stated that if at any time counsel for appel-lees desired additional papers or proceedings to be made a part of the record the appellants would take or agree to proper steps to have the same inserted therein. In the order of the solicitors for appellants directing what should be inserted in the record, it was stated as a reason for omitting the other testimony that they had determined not to press upon appeal any exceptions to the resale based ⁴⁴⁹ upon the inadequacy of the price obtained for the property. Inasmuch as such exceptions were abandoned, it was not only proper that the testimony which only related to those exceptions should be omitted, but it would have been improper to have inserted it.

Sometimes appellants rely entirely on objections to the rulings of the lower Court to questions raised by the pleadings, or in some other way than by the evidence, and if they abandon or waive all right to question the right to the judgment or decree, so far as the evidence and rulings based on it are concerned, they are not required to bring the testimony before us. We might illustrate what we mean by referring to some cases where that has been done, but deem it unnecessary to do so. If an appellant omits from the record evidence or papers which clearly should have .been included, and- it is brought to our attention on application for a writ of diminution, we can protect the appellee by requiring the appellant to have the additional record transmitted and printed at his expense, and on default can dismiss his appeal. If we were satisfied that an appellant had brought only a small part of what should clearly have been included in the record, in order that he might have his transcript filed here within the time required after the appeal is taken, or simply to avoid proper costs, we could refuse to allow a writ of diminution, if the additional record could not be obtained and filed within the time allowed by statute or the rules of this Court, or if any other improper conduct was deliberately attempted to be practiced in reference to the record, it could be dealt with in a way to prevent injustice being done the appellee, or the Court being imposed on or its rules violated.

But it can not be denied that great injustice may be done those who desire to have the decisions of the lower Courts reviewed, if the appellees can demand that everything in the papers below shall be included in the transcript, regardless of whether it is relevant or material. The objection that the testimony which was inserted was in the shape of carbon copies furnished by the appellants and procured from an unnamed stenographer is met by the ⁴⁵⁰ affidavit of the deputy clerk, which shows that the practice of the lower Court is, when testimony is taken in open Court, ■to have the official stenographer make due and proper stenographic notes of the testimony but not to write it up, unless requested by one of the parties, and that when so requested it is-written up at the expense of the party asking for it and that many counsel when having depositions written up for the purpose of appeal have carbon copies made which are furnished the clerk. According to the affidavit that was done in .this case and the official stenographer filed with the clerk what purported to be a transcript of his stenographic notes of. the testimony taken by him, and the carbon copies furnished by counsel for appellants were duly examined and compared with the original filed by the official stenographer, by the deputies of the clerk. . . We have thus discussed the motion to dismiss at more length than usual because we deem it important that the practice be understood, but we have no hestitation in overruling. the motion under the circumstances of -this case, which we accordingly do. 2.--We will now consider the exceptions to the sale, which can be grouped under two heads.

The first is, what was the •effect of the death of E. M. Spedden; one of the plaintiffs, •on April 21,- 1911, three days before the resale took place? The appellants contend in their brief that “the cause abated, and that technically no sale should have been made until Spedden’s executors had been made parties in his place.” As shown by the record in the former case, Messrs. Middendorf and Heyward, committee, and Eobert M. Sped-den filed a bill in equity against the Baltimore Eefrigerating and Heating Company, the receivers who had been appointed, the members of what is called, the Homer-Betts Committee, Eichard B. Fentress and the Continental .Trust Company. The ultimate object of the bill was to have the mortgage given by the Baltimore Eefrigerating and Bleating' Company to the Continental Trust Company foreclosed.

That- mortgage was given to secure two thousand bonds for a 'thousand dollars each and the usual provisions in such ⁴⁵¹ mortgages were contained in it. Tlie bill was filed on November 3rd, 1910, by the above mentioned plaintiffs, “who sue as well for themselves as for all other holders of the bonds * * * who will come in and contribute to the expenses of this suit.” It alleges that Messrs. .Middendorf and Heyward by a written agreement (a copy of which is filed) have been constituted a committee of bondholders “expressly vested with full title to and ownership of bonds and coupons thereunder deposited and having plenary power of representation of their constituents in the premises; and to said agreement, your Orator, Robert M. Spedden, owning 68 bonds of said company, and certain other bondholders having heretofore subscribed.” On November 12th, 1910, the plaintiffs filed a petition praying that after due notice an order be passed for a sale of the property of the company, free and clear of the lien of said mortgage, before final decree in this cause. That ultimately resulted in an order of the Court being passed on the 7th of December, 1910, directing a sale, and appointing the Continental Trust Company trustee to make it. On February 3rd, 1911, the trustee reported a sale of the property to the Central Securities Company, which was ratified and confirmed.

That company having failed to comply with the terms of sale, steps were taken to have a resale at its risk, which resulted in an order of resale being passed on the SHli day of "March, 1911, which directed that the resale take place on the 17th day of April, 1911. On the latter day the Central Securities Company filed a petition stating that it believed that if the sale was postponed it could arrange to comply with the terms of sale and thereby avoid a resale and praying that the resale be postponed until April 24th, 1911. The two committees of the bondholders united in the request for the postponement, and it was so ordered by the Court. That company having failed to make the arrangements the