Earl v. Anchor Pontiac Buick, Inc.

Barnes, J., dissenting: Although I am personally sympathetic to the difficulty in which the appellant finds himself in this case, I must dissent because, in my opinion, he is not entitled to have us remand the case without affirmance or reversal pursuant to Maryland Rule 871 a. As I indicated in my recent dissent in State v. Giles, 245 Md. 660 , 229 A. 2d 97 (1967), the proper construction of Rule 871 a is that the reason for the remand without affirmance or reversal must appear from the record in the case before us, and not from evidence, newly discovered or otherwise, which is not in the record on appeal. There is nothing in the Rule which permits us to take additional testimony on appeal or to consider new evidence or other matters by agreement or acquiescence of counsel. Indeed, to do this results in a departure by us from the appellate jurisdiction vested in the Court of Appeals by the Maryland Constitution and statutes, and results in a trespass by us upon the nisi prius jurisdiction vested by the Constitution and statutes in other courts.

We have quite enough appellate judicial business without assuming any part of the original jurisdiction of the lower courts. I developed my ideas in this regard in the Giles dissent and no more need be said about this aspect of the matter here. In my opinion, the majority of the Court was in error in its decision on the motion to remand under Rule 871 a in Fletcher v. Havre de Grace Fireworks Co., 229 Md. 196 , 183 A. 2d 386 (1962). My views on this