Willis v. Jones

Miller, J., delivered the opinion of the Court. This bill was filed by the appellant to restrain execution of a judgment recovered against him by James M. Jones. The bill charges, that the complainant is entitled in equity to set off against it certain claims, aggregating more than the amount of the judgment, and therefore prays for an injunction restraining execution of the whole judgment. Upon the filing of the bill, the Court, on the lVth of April, 1880, passed an order granting an injunction restraining the defendants from proceeding with the . execution issued on the judgment, “ until they shall have first credited ” thereon the amount of a certain single bill, being -one of the claims relied on by the complainant as a set-off, the complainant treating this order as a refusal of the injunction, as to the balance of the judgment, entered an appeal therefrom on the 31st of December, 1880.

Afterwards, on the 6th of April, 1881, the Court, upon petition of the defendants, so modified the restraining order as to allow them to proceed with their execution for the balance due on the judgment after crediting thereon the amount of said single bill. This modification simply made the order conform to what was obviously the intention of the Court, when it was originally passed, and to the settled practice in such cases ; for if the Court was right in assuming that this single bill was the only credit to be allowed on the judgment, then the in ³⁶⁵ junction was properly restricted by the modified order, and the execution properly allowed to proceed as to the residue. Hodges vs. Planters’ Bank, 7 G. & J., 306 ; Levy and, Wife vs. Steinback, 43 Md., 214 . From this order also, the complainant, on the 11th of April, 1881, took an appeal, but the record was not transmitted to this Court until the 3rd of October following, more than ten months after the first and more than five months after the second appeal, and a motion has been made to dismiss both appeals, upon the ground that the record was not transmitted to this Court within the time required by law.

Each appeal is by the complainant from a refusal to grant an injunction to the extent prayed for by his bill. He asked that execution of the entire judgment should be restrained, but this was refused and hence his appeals. By sec. 25, Art. 5 of the Code, as amended by the Act of 1868, ch. 102, it is provided that, “whenever any Court having equity jurisdiction, shall refuse to grant an injunction according to the prayer of the bill, or petition filed in the cause, an appeal may be taken from such, refusal, by any party aggrieved thereby, and the said appeal shall be heard on a transcript of the said bill or petition, with such other papers or proceedings in the cause, as may be considered necessary for the purposes of the appeal, and as soon as conveniently may be after such transcript shall have been filed in the Court of Appeals ;” and by Rule 10, regulating appeals, ( 29 Md., 4 ,) it is provided that whore appeals are taken under this provision of the Code, “ the transcript of the record shall be made and transmitted to the Court of Appeals forthwith after the appeal prayed.” It is very clear that a delay of more than five months in the transmission of such a record as the one in the case before us, is not in compliance with the rule that it shall be made and transmitted “forthwith after the appeal prayed.” ³⁶⁶ But the appellant’s counsel insists that the appeal should not he dismissed because the delay arose from the fault of the clerk, and several affidavits on this subject have been submitted for our consideration. Without doubt, Bule 16, ( 29 Md., 7 ,) applies to this case, but it is well settled that that rule puts the burden of proof on the appellant, to show some sufficient cause for the unauthorized delay, and he must make it affirmatively appear that such delay was not caused by his own default or laches, hut by the “ neglect, omission or inability of the clerk.” ' Ewell vs. Taylor, 45 Md., 573 .

Now it is by no means clear, from the affidavits before us, that the appellant has made out a case upon which the appeals can be sustained, under the rule as thus construed. But we do not deem it important to decide this question because the practical result to the appellant will he the same, whether the appeals he dismissed or not, for we are all of opinion that if the appeals he sustained, the order of the 6th of April, 1881, must he affirmed. The facts of the case, necessary to he stated, are briefly as follows: Jones and his wife separated in February, 1873, and in April, 1874, the wife died intestate, hut leaving children. Shortly thereafter letters of administration upon her estate were granted to her brother, the present appellant.

Jones, the surviving husband, then applied to have these letters revoked, upon the ground that the grant of them was contrary to law, and in contravention of his rights in her property. The order revoking the letters, was, on appeal affirmed by this Court, and the case is reported in 42 Md., 422 . In that case it was decided, 1st, that whatever personal property Mrs. Jones died possessed of she acquired and held under the first section of Article 45 of the Code, and by the second section of that Article, her surviving husband was entitled to a life estate therein, she having left children. 2nd, that the surviving husband had not, by the articles of separation ³⁶⁷ and the conveyances referred to. parted with or abandoned his rights to the property which his wife might thereafter acquire and die possessed of, and with respect to such property thus acquired