Ward v. Hollins

LeGband, C. J., delivered the following dissenting opinion:-' I have not a shadow of a doubt, that the decree in this case- ¹⁶⁸ was erroneous. Besides other objections to it, the fact that there was not a particle of proof to sustain any of the claims mentioned in the bill, except that of George Hollins, would be sufficient to condemn the decree which adjudges in favor of the validity of all of them. Looking to all the circumstances of the case, I confess I have been anxious to find out some method by which I could feel myself authorized to reverse the decree and remand the cause for further proceedings, but I have not been able to discover any principle which would justify me in such a course. I think the motion to dismiss the appeal ought to be sustained.

There are no exceptions to the sufficiency of the averments of the bill, but even if there were,the question would still be, what effect Would the agreej ment to waive the appeal have? There is no proof whatever of any collusion or fraud, on the part of the original counsel of the appellants in making the agreement to abandon the appeal, and the question, therefore, simply is, whether it ufas competent to him to make it as solicitor? If it was, then the motion to dismiss must prevail. There is no warrant of attorney necessary in this State.

Henck vs. Todhunter, 7 Har. & John., 275. An agreement made by counsel, free from fraud or mistake, is equivalent to-an agreement between the parties. It has been long the practice in this State to consider binding, decrees made by consent of counsel, and from such decrees no appeal will lie. Williams vs. Williams, 7 Gill, 305.

An altornej^ may confess-judgment. Farmers Bank of Md. vs. Sprigg, 11 Md. Rep., 396 . He has the power to pray an appeal, and it is1 every day practice for him to dismiss an appeal. If he have this power it is difficult to understand, why he has not that of agreeing to abandon the appeal, before the record reaches the! appellate court.

See Galbreath vs. Colt, 4 Yeates, 551. I assent to all the other views* of my brothers',- Bartol, L, delivered the opinion of this court. The decree from which this appeal was taken was passed pn the 8th day of April 1S56, declaring a certain deed of the 28th of September 1854, to be void as against the complainants and other creditors of Eliza Ward, directing the property mentioned in that deed, or so much thereof as might be necessary, to be sold to discharge the claims of the complainants and all other creditors of Eliza Ward who may come in as parties to the suit, and appointing P. McLaughlin, Esq., trus, to make tire saje, ¹⁶⁵ On the 26th of April 1856, the defendants prayed an appeal, which was granted; afterwards, on the 28th of April, the following agreement was filed in the cause: “It is agreed (hat the trustee shall suspend the sale authorized to be made in the above cause, for ninety days from date, and in consideration thereof the defendants, in the above cause, agree to withdraw their appeal, and agree that they will not hereafter appeal from the decree in the above cause— April 28th, 1856. P. McLaughlin, Sol. for Complainants.

Geo. Ross Yeazey, Sol. for Defendants.” Afterwards, on the 1st of July 1856, another agreement was filed, signed in the same way, agreeing “that P. McLaughlin, the trustee, shall proceed to sell all of the ground authorized to be sold in the above cause, which lies east of Strieker street; and that such sale may be made on ten days’ notice.” In pursuance of the last mentioned agreement, the trustee made sale of that part of the property therein mentioned, for the sum of $3180, which was finally ratified on the 25th of July 1856. On the 25th of September thereafter, the defendants, by their present solicitors, prayed an appeal from the decree, which brings this record before us. Xt is urged, on the part of the appellees, that the appeal ought to be dismissed, because it was taken in violation of the agreement of the 28th of April, which, it is contended, was a binding contract, and ought to be enforced.

Its validity is not questioned upon the ground of any collusion or fraud on the part of the solicitors who signed it, nor does the record contain any proof upon which such a charge could be made. It is not necessary to enter into the question, whether the late lamented solicitor for the appellants had the power, by virtue of his general authority as solicitor, to make the agreement. In the absence of