Lester v. Howard

Bowie, C. J., delivered the opinion of this Court. An appeal was entered in this case by the defendant in proper person, on the 22nd September, 1863, and bond executed and approved. The appellee moves to dismiss the appeal, and files an affidavit, in which he alleges, “ That judgment was obtained therein in favor of the plaintiffs, as well as in another suit in which he was also a plaintiff with different parties, in the Court of Common Pleas of Baltimore City, at May term, 1863. That subsequently the said Lester appealed to the plaintiffs to release the lien of said judgments on certain property belonging to him, which he was endeavoring to sell, and in consideration of the granting of said release by the plaintiff, of the lien of the judgment, the said Lester agreed to pay the full amount of the judgment in the Court of Common Pleas, with costs, and to dismiss the appeal therein, and to pay the amount of interest accrued on the judgment in the Superior Court, and to abandon the appeal thereupon and to pay, within thirty or sixty days, at the farthest, the full amount of said judgment; that this agreement was made on the 4th of January, 1864; that the liens aforesaid were released, and the orders of plaintiffs and their [235] •attorneys, Messrs. Matthews ¿6 Loney, toere filed to that effect; that the said Lester thereupon did pay the full amount of the judgment and costs in the Court of Common Pleas, •and did also pay the interest accrued to that date upon the judgment in the Superior Court, but failed to pay the full amount of said judgment within the stipulated time, although repeatedly afterwards promising so to do, ¡and has failed to abandon the appeal in this case in accordance with the stipulation for which he received a valuable ¿consideration,” etc. In addition to the affidavit of the appellee, the affidavit -of R. Stockett Matthews, an attorney of this Court, is filed, in which he deposes that he was counsel for the appellee fin the above case of Howard and others vs. Lester ; that he was present and privy to the arrangements made by George W. Howard, one of the appellees, with the defendant (the appellant) as set forth in the affidavit of said Howard, and that the matters and things set forth in said affidavit are true ; and further says that repeatedly, after the release of the lien as described in the said affidavit, the said Lester promised to fulfill his full undertakings and agreement, and stated that the appeal in this case was taken for delay .solely. Short copies of the docket entries in the case of George W. Howard et al. vs. James M. Lester, in the Superior Court of Baltimore City, were also filed, “Showing that on the 4th January, 1864, property on Hamburg street, and also on Franklin street near Pine street, was released from plaintiff’s claim by notice of the judgment in this case by order of plaintiffs and plaintiffs’ attorneys filed;” also short copies of the docket entries, in the Court of Common Pleas, May term, 1863, in the case of Daniel Shipley, Henry W. Roane, George W. Howard vs. James M. Lester, 22nd September, 1863, viz. “ Stayed by appeal 5th January, 1864. .'Satisfied order of attorney filed.” Service of the notice to [236] dismiss is admitted by the appellant’s counsel, hut no other response made, than that the appellant denies the agreement, and this denial is not supported hy affidavit. (Decided March 14th, 1866.) The appellant’s counsel insists that assuming such an agreement to he made, as is set forth in the affidavits, the appellees’ remedy is by application to a Court of Equity, to enjoin the appellant from prosecuting the appeal, and. is not a subject of cognizance for the appellate Court. In Ward et al. vs. Hollins et al., 14 Md. Rep., 166, the whole Court conceded, that “ if for a legal and valid consideration, the appellant agreed to withdraw his appeal and not thereafter to appeal, such an agreement would he enforced” hy the Appellate Court’s- dismissing the appeal hut the majority of the Court thought that in the case before-them there was no legal and valid consideration, one of the parties thereto having no legal power to hind the persons whom he undertook to represent. The Chief Justice thought the motion to dismiss the appeal ought to he sustained. This Court alone has power to decide when an appeal will lie in any particular case. 6 H. & J., 143. 1 Md. Ch. Dec., 330. When the appeal has been taken, all agreements by the parties or their counsel are properly within its control. It being a question of jurisdiction, this Court could not recognize the power of other tribunals to determine whether it should be exercised or not, without surrendering its authority as a Court of final resort. The agreement to abandon the appeal in this case, being for a legal and valuable consideration, executed on the* part of the appellees, fully proved to the satisfaction of this Court, and not denied hy the appellant under oath or attempted to he disproved, there is no alternative, but to dismiss the appeal. Appeal dismissed.