Thruston v. Devecmon

Alvey, J., delivered the opinion of the Court. By the order of the 7th of July, 1866, ratifying the auditor’s first report and accounts, “no cause to the contrary having been shown,” the trustees were, by explicit terms, ordered to pay out the money in their hands, according to the audit ratified. This order the trustees could not rightfully disobey. They were the officers of the Court, exercising simply the powers conferred upon them by the previous decree of sale, which required them to bring the money into Court to be disposed of under its direction, and any order directing the application of the fund arising from the sale should have been at once respected and obeyed by the trustees, without question.

This, however, one of the trustees declined to do, but made question of the order directing the application of the money in his hands, while his co-trustees were ready and willing to observe and comply with the order. Under such circumstances, the proceeding adopted by the ap-pellee to compel the non-complying trustee to pay over the money was competent and proper. 2 Md. Ch. Dec., 362. This order, of the 7th of July, was a decretal order, or an order in the nature of a final decree.

It contained no reservation of equities, or power of further direction, but was final upon the rights of the parties, and could only be dealt with as a definitive decree. Such being its character, it is sought ²¹⁷ to be revised and modified on petition, suggesting fraud and. malpractice, not in reference to obtaining the order of ratification, but in regard to the claim allowed to the appellee, and the question is, can it be done under the facts and circumstances of this case? The term of Court at which the order was passed and filed, expired on the 9th of July, 1866, two days after the date of the order. The succeeding term commenced on the 9th of July, and expired on the first Monday of October then next.

The petition of the appellant and others was not filed until the 18th October, 1866. Thus the term at which the older was passed, and the next succeeding term, were allowed to expire before proceeding taken by petition to change and modify the order of ratification. We think this petition came too late to accomplish the purpose in view. There is no question but that during the term at which this order was