THE ATLANTIC REPORTER VOLUME 106 CULVER v. COOK et al. (No. 49.) (Court of Appeals of Maryland. Feb. 11, 1919.) and Margaret E. Lecates, infants. The record shows that Olga M. Adkins, the mother of said infants, died intestate on the 6th day of May, 1918. She had been twice mar ried. She first married Floyd Lecates, and after his death she married Riley W. Ad 1. APPEAL AND ERROR 874(1)—APPEAL FROM ORDER-Orders REVIEWABLE. If removed guardian desired to question va-kins. The infant children above named are lidity of order removing him, it was his duty to have appealed to Court of Appeals within 30 days after date of order, under Code Pub. Civ. Laws, art. 5, § 62, and no appeal having been so taken, Court of Appeals has no power to review action of orphans' court in removing guardian on appeal from order annulling his bond. 2. APPEAL AND ERROR 1073(1)-HARMLESS ERROR-ANNULMENT OF GUARDIAN'S BOND. Any error in annulment of bond of guardian removed from office, he having failed to appeal from order of removal within 30 days limited by Code Pub. Civ. Laws, art. 5, § 62, was harmless to the guardian. 3. APPEAL AND ERROR 780(1) — DISPOSITION-DISMISSAL. No relief would be afforded to a removed guardian by the reversal of an order annulling his bond, and his appeal from such order will be dismissed. the issue of the first marriage. After the death of Mrs. Adkins, N. B. Lecates, the grandfather of said infants, filed a petition in the orphans' court for Wicomico county, asking that a guardian be appointed for them. This petition was filed on the 14th day of May, 1918, and on the same day the court appointed Herman W. Culver guardian for said children, and on the same day he filed an approved bond as guardian. On the 21st day of May, 1918, Mrs. Sallie Cook, the mother of Mrs. Adkins, and Riley W. Adkins, filed a petition in said court in which, among other things, it is charged: "(a) Your petitioner, Mrs. Sallie Cook, has made her home with her daughter, the said Olga, both during the lifetime of her first husband, and continued to do so after her marriage to your petitioner, Riley W. Adkins; that her daughter was in delicate health, which cast up Appeal from Orphans' Court, Wicomico on your said petitioner, Mrs. Cook, much of the County. Petition by Sallie Cook and Riley W. Adkins against Herman W. Culver to rescind and annul his appointment as guardian, which was done. From an order annulling his bond as guardian, he appeals. Appeal dismissed. Argued before BOYD, C. J., and BRISCOE, BURKE, THOMAS, PATTISON, URNER, STOCKBRIDGE, and CONSTABLE, JJ. F. Grant Goslee, of Salisbury, for appellant. James E. Ellegood, of Salisbury (Ellegood, Freeny & Wailes, of Salisbury, on the brief), for appellees. BURKE, J. This is an appeal from an order of the orphans' court of Wicomico county, passed on the 11th day of June, 1918, rescinding and annulling the guardian bond of Herman W. Culver, guardian of Virginia E. care and training of the said children; that she had full opportunity of seeing and knowing the tender and affectionate regard which the stepfather and stepchildren had for each other, which was as cordial as if the actual relation of parent and children had existed. "(b) Your petitioners are advised that Herman Culver has been appointed guardian of the said children, and claims that he has the right to the custody of said children, although he is not related by blood to the said children, and has no other relation than that of marriage to their aunt-that is to say, sister of their deceased father. "Your petitioners charge that he nor his wife ever had any care or responsibility in the slightest degree, remotely or directly, in the maintenance and training of the said children, nor did the two families-that is to say, the said Culver and wife, and the mother of the said childrenhave any family intercourse during the lifetime of the said mother; but your petitioners are advised that in about a week after the death of said mother the said Herman Culver was appointed guardian, without any notice to your petitioners and without their knowledge, though For other cases see same topic and KEY-NUMBER in all Key-Numbered Digests and Indexes the said children were then and have been continuously under the care and protection of your petitioners; that it was the special request of their mother, made immediately prior to her death, that your petitioner, the grandmother and next of kin of said children, should have the care and custody of the said children; but so it is that neither of your petitioners have had any opportunity of being heard by this honorable court as to the wishes of the mother, the grandmother, or stepfather, though both of the latter hold the closest and most affectionate relations to the children, than whom there is no one more interested in their welfare. from an order passed June 11, 1918, annulling the guardian bond of the appellant. If the parties could open for review, on appeal, in this indirect way, the orders of the orphans' court, "it would virtually amount to a repeal of the laws limiting the time within which appeals should be taken, and would Lefever v. lead to interminable litigation." Lefever, 6 Md. 472. [2, 3] We must therefore treat the appellant as having been removed as guardian at the time the order appealed from in this case was passed. The reversal of that order could not have the effect of disturbing the or "Your petitioners, therefore, pray this honorable court to revoke and cancel the order of 14th day of May, 1918, appointing Herman Cul-der of May 21, 1918, or of restoring him to ver guardian as aforesaid, and to appoint a day in the near future for consideration of the appointment of a guardian, at which the parties interested may have a hearing." Upon the filing of this petition, the court on the 21st day of May, 1918, revoked and canceled the appointment of Herman W. Culver as guardian of Virginia E. and Margaret E. Lecates, and further ordered that the question of the appointment of a guardian for said children be set for a hearing on May 28, 1918. Herman W. Culver, as guardian, answered the petition, and stated that the matter charged in said petition did not constitute sufficient cause for his removal. But he took no appeal from the order revoking and canceling his appointment as guardian. The record shows that a petition was filed to annul the guardian bond of Herman W. Culver, but it does not show what it contained or by whom it was filed. The hearing upon this petition was continued until June 11, 1918, on which day the court passed the following order: "We, the orphans' court for Wicomico county, Md., rescind and annul the guardian bond, Virginia E. and Margaret E. Lecates. Herman W. Culver was appointed guardian May 14, 1918. After hearing the case, we have decided not to appoint a guardian at present of above Whatthe guardianship of said children. ever, therefore, we may think of the power of the orphans' court, under the circumstances, to pass the order appealed from, it is quite clear that its reversal would not benefit the appellant, or that its passage did him It is stated in Miller's Equity no injury. Proceedings, § 362: "Unless it appears from the record that the appellant has been injured by the decision of the court below, that decision will not be reviewed, even if erroneous as to other parties. If there is no injury to the appellant, he cannot claim a reversal of the decree to correct an error." As it does not appear that the appellant was injured by the order appealed from, or that any relief would be afforded by the reversal of the order, the appeal will be dismissed. Thom et al. v. Cook et al., 113 Md. 85, 77 Atl. 120; Manufacturers' & Merchants' Co. v. Pyles, 125 Md. 317, 93 Atl. 917. Appeal dismissed, with costs. WAGNER v. RUHL et al. (No. 61.) children. We will consider the matter and ap- (Court of Appeals of Maryland. Feb. 11, 1919.) point a guardian when we think best." On the 28th of May, 1918, letters of administration were granted to Riley W. Adkins on the estate of Olga W. Adkins, and on June 25, 1918, the orphans' court appointed Uriah W. Dickerson guardian of said infant children, and he filed an approved bond as guardian. [1] The order removing the appellant as guardian was passed, as we have stated, on the 21st of May, 1918. If he desired to question the validity of that order, it was his duty to have appealed to this court within 30 days after the date of the order. Article 5, § 62, of the Code. No appeal was taken, and we now have no power to review the action of the court in passing the order. The appeal in this case was taken July 10, 1918, 1. JUDGMENT 567-RES ADJUDICATA-CONSENT DECREE AND RELEASE. Consent decree and release pursuant thereto, setting controversy over assignment of $5,000 interest in partnership, held to bar any further controversy between the same parties, involving the matter adjudicated and settled. 2. PARTNERSHIP 114-TRANSACTIONS BE TWEEN PARTNERS-ACTION-LACHES. Where consent decree was passed and release pursuant thereto executed, settling controversy over assignment of $5,000 interest in a partnership 5 years before a party thereto filed bill to assert contrary rights, he was guilty of laches. Appeal from Circuit Court No. 2 of Baltimore City; James M. Ambler, Judge. "To be officially reported." For other cases see same topic and KEY-NUMBER in all Key-Numbered Digests and Indexes |