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WEEKLY EDITION.
LIBRATA BUIS PONDERIBUS
BALTIMORE, SATURDAY, OCTOBER 23, 1869.
Vol. III.
Maryland Reports.
APRIL TERM, 1868.
[Will appear in 29th Maryland.]
ROBERT WYLIE,
vs.
THOMAS D. JOHNSTON, SAMUEL HURLBURT, AND OTHERS.
Appeal from the Circuit Court of Baltimore City.
rOWERS AND DUTIES OF THE THE APPELLATE COURT-APPELLATE COURT TO
DETERMINE WHEN AN APPEAL LIES-WHEN AN APPEAL WILL NOT LIE.
The powers and duties of the Court of Appeals are defined and limited. It
cannot entertain appellate jurisdiction except when prescribed by law.
Where it undertakes to review the proceedings of subordinate tribunals, the
authority must be shown.
It is the province of the Appellate Court to decide when an appeal lies, and
not of the Court from which the appeal is taken.
No appeal lies from an order of a Court of Equity, vacating a decree passed
during the term at which the decree was rendered.
The bill was filed in this case by the appellant against the appellees and
others for the specific performance of an agreement to lease, and for the re-
covery of alleged arrearages of rent.
A final decree having been passed in the eause, the Court (ALEXANDER,
J.,) at the same term passed an order vacating the decree, but requiring the
defendants to file their answers before the succeeding term, under the pen-
alty of a re-affirmance of the decree, and to pay the costs up to the time of
the order.
From this order the present appeal was taken by the complainant.
The cause was argued before BARTOL, C. J., NELSON, STEWART, and AL-
VE Y, J.
JOsEPH L. BRENT, for the appellant:
The return of the Sheriff was conclusive of the service of the summons;
and if not conclusive, the interlocutory decree adjudicated the point that the
commission regularly issued. The commission contains the evidence upon
which the case rested ; it was lawful for the complainant to testify, and there
is nothing in the record to impeach his testimony, which establishes a case
where his rights have been most flagrantly violated. The decree was tn
equitable one. It did not undertake to assess damage for the injury inflicted
on the property, which had passed into the possession and enjoyment of the
defendants and their agents ; but confined itself simply to decree that as de-
fendants had accepted the parol contract for the purpose of taking possession
of and using the land of complainant, they should not escape specific per-
ance thereof in the payment of the stipulated rent, though they had not ex-
ecuted the written lease.
Nor can it be claimed that the decree was erroneous, because the complain-
ant had an adequate remedy at law. The defendants, by appealing from the
decree, might have ample relief on this ground. Lippy vs. Masonheimer, 9
Md. Rep. 315.
The complainant cannot sue at law for rent on a demise for a term of ten
years where the contract is not in writing; but here he alleges that the agree-
ment of lease was in part performed, by his giving and the defendants re-
ceiving possession of the demised premises, and it is somewhat ungracious,
if the evidence taken under the commission be looked at, for the defendants
to plead the Statute of Frauds, which would certainly defeat his action at
law, except for use and occupation, and would leave him remediless, unless
in equity, so far as his rights were involved on the agreement to rent for ten
years. Anderson vs. Critcher, 11 G. & J. 450.
It was error to vacate the decree on the petition of Hurlburt.
He placed his claim to relief on the ground that the return of the Sheriff,
made two years previously, was false; and in making this assertion, he not
only disclaimed imputing fraud to the complainant or Sheriff, but had to en-
counter the fact that it was apparent that the Sheriff had executed the writ
as far as Charles R. Carroll was concerned, as he had appeared and answer-
ed; and the presumption is that he had executed it also on his co-defend-
ants, Johnson and Riggs, as they neither then nor at any subsequent time
have denied it. But the Sheriff's return is conclusive and not traversable in
the same action, and, if false, the remedy is by action at law for the false re-
turn. Watson on Sheriff, 68; State vs. Lawson, 2 Gill, 68.
Even the appearance of counsel is conclusive on a party for whom he ap-
pears, and the only remedy for damages sustained is by action on the case.-
Henck vs. Todhunter, 7 H. & J. 273; Munnikuyson vs. Dorsett, 2 H. & G.
374; Fowler vs. Lee, 10 G. & J. 358.
Hence the Court is bound to assume that Ilurlburt was summoned. But it
is conceded that in Maryland, even where a defendant is summoned and fails
to appear, and decree is rendered against him, it may, at the same term, be
set aside, if it appear that the defendant has a complete defence, and that he
only failed to appear through a misapprehension. Tabler vs. Castle, 12 Md.
Rep. 148.
The discretion to be observed by the Court, in opening its decrees, is not
an absolute one, but is revisable on appeal. This is the uniform rule in Ma-
ryland. Burch vs. Scott, 1 G. & J. 393; Oliver vs. Palmer, 11 G. & J. 147
Tabler vs. Castle, 12 Md. Rep. 157.
But if Hurlburt, by reason of his application before the end of the term, was
entitled to have the decree opened, it is difficult to see on what ground the
learned Judge based his action in opening the decree against Riggs & John-
ston after the term at which it was rendered had passed.
They never asked to have it opened; they never claimed that they were
not in wilful contempt of the process of the Court; and yet, on the motion
of Hurlburt, relating exclusively to himself, the decree against them all is
opened.
Assuming that the Bill of Complaint sets out a joint demand against all,
and the decree gave a judgment to be enforced against all, yet Hurlburt
might have equities to escape, while Johnston & Riggs should be held-surely
it cannot help Johnston & Riggs that Hurlburt was not summoned or had
equities. If they were, as they confessedly are, by their acquiescence, in flag-
rant contempt of the process of the Court, they cannot be now heard through
Hurlburt's merits, actual or supposed.
There could be no possible necessity, therefore, to strike out this decree
against all the defendants, because of the equity of one, denying his original
liability.
At law, the technical effect of a judgment against some of the joint con-
tractors, was held to be a merger of the cause of action, but only for certain
purposes, and subject to certain qualifications. Evans & Co. vs. Sprigg et al.
2 Md. Rep. 473-4. Even this rule at law is changed by the Code. Code of
Pub. Gen. Laws, art. 20, sec. 18.
A decree in equity has no such technical effect; and if it had, the provi-
sion of the Code above cited would be adopted by analogy, as equity
always follows the law. Therefore, the decree could well stand against
two, while the third defendant might be allowed to subsequently contest his
liability.
JoHN STEWART, for Hurlburt & Riggs:
It was entirely within the sound discretion of the Circuit Court to vacate
or affirm its decree before the enrolment thereof. The decree was signed
during March Term, 1866, and the petition for a re-hearing filed during the
same term, and within four days after the signing of the decree. Smith's
Chan. Prac. 431; Alexander's Chan. Prac. 178, 381, sec. 38 ; Burch et al. vs.
Scott, 1 G. & J. 398; Dorsey vs. Clarke, 4 H & J. 533; Lansing vs. McPher-
son, 3 Johns. Chan. Rep. 424; Wooster vs. Woodhull, 1 Johns. Chan. Rep.
539; Vowles vs. Young, 9 Vesey, 172; Oliver vs. Palmer, 11 G. & J. 138;
Tabler vs. Castle, 12 Md. Rep. 144.
The appellee, Hurlburt, distinctly swears that he was never summoned,
and, furtherm')re, that he has a valid defence. The affidavit not only covers
his own case, but that of his co-respondents, and upon that affidavit the
Court below was right in vacating the decree as to all the respondents. It
was a joint action and a joint decree. If bad against one it was bad against
all. There is no counter affidavit of the Sheriff or his deputy.
STEWART, J., delivered the opinion of the Court.
The powers and duties of the Court of Appeals are defined and limited. It
cannot entertain appellate jurisdiction except when prescribed by the law.
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