Chenowith v. Smith

Alvey, J., delivered the opinion of the court. This appeal 'must be dismissed. The ordei: from which it is taken is not final in its character. It is not a final decree, or an order in the nature of a final decree, such as is contemplated by Art. 5, sec. 20, Code of Pub. Gen. Laws. Nor is it embraced by sec. 21 of the same Article, giving the right of appeal in special cases. It is true, the prayer of the petitioner, Charles Chenowith, was refused, but only for the titne. The petition was not dismissed, but was retained, and the subject matter of it reserved for the future order of the court. No question of right, therefore, was finally determined. See Wheeler v. Stone, 4 Gill, 39. But, in thus disposing of the appeal, we think it proper to say, that, in our opinion, the court below was greatly in error in not at once surrendering all control over the fund, sought to be withdrawn from its officer. The injunction had been ^dissolved, and the receiver discharged, and there was no longer any colorable justification for holding the property. It had been determined by the Court of Appeals that there was no foundation for the injunction, nor for the continuation of the receiver, as to the particular property how in question ; [24] and upon the discharge of the receiver the property was released. And as there appears to be no question as to the genuineness of the assignment of George E. Chenowith to Charles Chenowith, the fund in the hands of the receiver, representing the property taken and sold, should have been ordered to be paid over to such assignee. Nor do we see any valid objection to the mode of proceeding adopted to recover the fund from the hands of the receiver. But looking to dispatch, and the convenience of the thing, we think it was the most appropriate that could have been resorted to. And we think the precedents, sanctioned in the practice of the Courts of Equity of this State, fully justify it. See Balch v. Zentmeyer, 11 G. & J. 267; Glenn v. Gill, 2 Md. 16. We have said this much in reference to the merits of the case, although not properly before us, that additional expense and litigation may be avoided, and that the court below may, by further order, do what ought to have been done in the first instance. Appeal dismissed.