DocketNumber: [No. 73, October Term, 1932.]
Citation Numbers: 164 A. 665, 163 Md. 670
Judges: DIGGES, J., delivered the opinion of the Court.
Filed Date: 2/15/1933
Status: Precedential
Modified Date: 1/12/2023
The case should be disposed of, I think, by an affirmance of the order appealed from rather than by a dismissal of the appeal; and the distinction seems worth making in this instance because disposition in the one way or the other represents the answer to an important question of power in the courts.
The sale referred to as having rendered the case moot was the culmination of a proceeding, the whole of which, including the sale, was attacked as an unfair, improper, maneuver of the plaintiff, who is itself the purchaser and distributee of the proceeds. While completion of the sale pending the appeal was not stayed, that fact did not, of course, affect the right of appeal from the dismissal of the interveners' petition. "The right thus conferred is unconditional and does not depend upon the filing of an appeal bond." Shirk v. Soper,
If, pending an appeal, without stay, from refusal to enjoin a cutting down of trees, the trees are felled, judicial action could not put the trees up again; it would be nugatory; and an appeal seeking the relief might be dismissed as having now no possible object. It is for the same reason that when, *Page 686
pending an appeal without stay of execution, a sale has been completed to a bona fide purchaser, one not involved in any impropriety charged, the sale cannot be set aside upon establishment of the fact of impropriety in bringing it about, and error in the order appealed from. Even in such cases the courts are not always rendered powerless, because often the proceeds of sale remain susceptible of distribution in a manner that will remedy the impropriety and error, and the case must then be disposed of on the merits with that possibility of remedy in view, and not by dismissal of the appeal. Chase v. McDonald,
7 H. J. 199; Wampler v. Wolfinger,
I see no basis for distinguishing the sale and distribution in this case from others attacked as having been unfairly accomplished by purchasers, and think, therefore, that the court needs to pass on the merits of the attack exactly as it would if an appeal bond had been filed. The order is shown to have been free from error, and for that reason should be affirmed. *Page 687