Waters v. Momenthy
Waters v. Momenthy
Opinion of the Court
delivered the opinion of the Court.
The appeal in this case must be dismissed. It appears that the appellee, Momenthy, applied for the benefit of the
Upon hearing the petition and answer, and argument thereon, the Court below simply ordered the petition to be dismissed, with costs, without in any manner indicating the ground of its action in so dismissing the petition. It is the final order of discharge that is sought to be vacated by this application, thus making the present petition serve the purpose of a sort of bill of review. But from the order sought to be vacated the appellant had his right of appeal, within the time and in the manner prescribed bylaw; and not having availed himself of the right within the time prescribed, he cannot be allowed to revive the right by any such proceeding as that adopted in this case. Besides, this is a matter in insolvency, and the appeal can only be prosecuted according to the terms of the insolvent law; which grants the right of appeal.
By Art. 5, sec. 13 of the Code, it is provided, “that the Court from whose judgment or order, under the insolvent
This provision of the statute restricts the power given this Court by the previous section of the Code, to review the order of the Court below ; and unless there be a certicate, or something equivalent to a certificate, defining the exact point or question considered and decided by the Court below, this Court clearly has no power of review. Here the petition sets up and relies upon several supposed defects in the proceedings as causes for declaring the whole proceeding void, but the legal validity of the proceedings is asserted and relied upon by the appellee ; and the order of the Court simply dismisses the petition. Without the certificate required by the statute, this Court is not advised, and is not authorised to conjecture, upon what ground the Court below acted in dismissing the petition. This Court, as we have seen, is strictly confined in its powers of review, to the point or question considered and decided by the Court below, and is forbidden to consider, upon the appeal authorised by the statute, any other point or question than such as may be certified. And as no point is certified here, we decide nothing in regard to the validity of the proceedings. Wright vs. Kuhn, 20 Md., 421, 424; Jaeger vs. Requardt, 25 Md., 231.
There has been an application to this Court for an order to the Court below, directing a certificate to be furnished, such as is required by the statute. But clearly, if it were even conceded that the certificate could be made at this late day, this Court has no power to pass such order upon the Court below. The whole matter is of statutory regulation, and. this Court has no power in the premises other than that granted by the statute.
Appeal dismissed.
Reference
- Full Case Name
- John Waters v. Bruno Momenthy
- Status
- Published