Waters v. Momenthy

Alvey, C. J., delivered the opinion of the Court. The appeal in this case must be dismissed. It appears that the appellee, Momenthy, applied for the benefit of the ¹⁷² insolvent law on the 4th of August, 1879, and, after publication of notice to creditors, he obtained from the Court of Common Pleas of the City of Baltimore, on the 15th of November, 1879, an order of final discharge under that law; the order reciting that the applicant had fully complied with the terms of the law. On the 10th of May, 1887, the appellant, who was one of the creditors of Momenthy at the time of his application for the benefit of the insolvent law, filed his petition in the insolvent proceedings, alleging that the final discharge granted the appellee was void, because of certain defects and omissions in the proceedings, which had the effect of depriving the Court of Common Pleas of the right and jurisdiction to grant the final discharge to the appellee.

The answer to the petition insists that the appellee had fully complied with all the requirements of the law, and acted fairly and bona fide, and that the Court had acquired jurisdiction and authority to grant the final discharge, and that the same cannot now be impeached. Upon hearing the petition and answer, and argument thereon, the Court below simply ordered the petition to be dismissed, with costs, without in any manner indicating the ground of its action in so dismissing the petition. It is the final order of discharge that is sought to be vacated by this application, thus making the present petition serve the purpose of a sort of bill of review. But from the order sought to be vacated the appellant had his right of appeal, within the time and in the manner prescribed bylaw; and not having availed himself of the right within the time prescribed, he cannot be allowed to revive the right by any such proceeding as that adopted in this case.

Besides, this is a matter in insolvency, and the appeal can only be prosecuted according to the terms of the insolvent law; which grants the right of appeal. By Art. 5, sec. 13 of the Code, it is