United Lines Telegraph Co. v. Stevens

Stone, J., delivered the opinion of the Court. ' The motion to dismiss the appeals in this case must he overruled. The direct point was decided in Oliver vs. Palmer, 11 Gill & J., 143. In this case an officer of the United Lines made affidavit that the orders appealed from were obtained by fraud, and that the fraud was only discovered within two months before the appeal. This is sufficient.

But while the orders of the 9th and 19th of November, 1885, are before us on appeal, we can in deciding upon the correctness of these orders only consider the proceedings which took place prior to the passing of these orders, and not the subsequent proceedings. After these decretal orders were passed the United Lines filed in the case a petition, seeking to vacate the orders upon the ground of fraud and collusion, on the part of their then attorney with the claimants in obtaining the orders, and a good deal of testimony was taken by the appellant for the purpose of showing such fraud. The question is thus directly presented whether under the established rules of practice, we can, under a petition filed in a case subsequent to a decree, vacate such decree for fraud after the decree has become enrolled. .This question seems to have been definitely settled in this State by the case of Thruston vs. Devecmon, 30 Md., 210 , and the cases there cited, and now after a decree or decretal order has become enrolled, it can only be vacated, where fraud in its obtention is charged, by original bill filed for that purpose. See also Downes vs. Friel, 57 Md., 531 .

Such being the established practice, the testimony taken under the petition filed in these cases subsequent to the orders, is not before us on the question of fraud. We are restricted in this proceeding to the evidence taken before the passage of the orders appealed from. Taking that evidence alone, we see no sufficient ground to reverse the orders. The claims were proved by the parties them ¹⁵⁹ selves, and -while there may he some suspicious' circumstances, notably the effort of Dunn, the largest creditor of the Bankers and Merchants Telegraph Company, to have one of the receivers removed, still we cannot say that any fraud and collusion has been satisfactorily proved by any evidence in the record that was before the Court when the orders were passed, and they must he affirmed in this proceeding.

The parties in whose favor'these orders were passed, issueáfi. fas. upon them, and the United Lines moved to quash these executions, and this presents the point of practice whether a fi. fa. can properly issue upon an order like the one before us. The orders are substantially the same, and provide in Dunn’s case, “That the United Lines Telegraph Company do at once pay into this Court the said sum of ten thousand, six hundred and fifty-three dollars and