Levy v. Levy , 1867 Md. LEXIS 81 ( 1867 )

Alvey, J.,

dissenting, delivered tire following opinion:

Instead of affirming I am of the opinion that the order of the Orphans’ Court refusing to dismiss the last caveat filed, should be reversed; for it seems to me that this last caveat was wholly unnecessary and vexatious.

Though a party, at whose instance issues have been framed in the Orphans’ Court, may dismiss them while pending in a court of law for trial, without being thereby precluded the right to have new issues framed in reference to the same subjects of inquiry, I do not agree that, by the simple dismissal of the issues in the court of law, the whole proceeding in the Orphans’ Court is by that act disposed of. The issues are only auxiliary to the proceeding in the Orphans’ Court, which alone has jurisdiction to pronounce judgment in the cause; and if this be so, then the caveators after the dismissal of the first issues framed, if they desired the same facts to be tried by jury, should have gone back to the Orphans’ Court, and asked for new issues, in the same proceeding in which the first were framed, instead of filing a duplicate caveat, and requiring a new answer thereto. This was an unnecessary multiplication of proceeding, the effect of which was to deprive the caveatees of the benefit of the progress that had been made in the first instance.

Before a second caveat, for the same causes, by the same parties, should be allowed to be filed and proceeded with, the first caveat should have been dismissed in the Orphans’ Court, with costs of the whole proceeding to the caveatees.