Easter v. Overlea Land Co.

Pattison, J., delivered the opinion of the Court. This is an appeal, from a judgment for the defendant in an action at law, brought in the Circuit Court for Baltimore County, by the appellants against the appellee. The sole question for review is presented by the appellants’ exception to the action of the Court in rendering a verdict and entering judgment thereon, without affording the plaintiffs as they allege an opportunity to submit to a judgment of non pros against them. The material facts set out in the exception are these: The , attorneys for their respective clients, on March 8th, 1915, entered into an agreement in which is found the following provisions: That all the testimony and exhibits, taken and filed and returned by the examiner in the equity case in the same Court and between the same parties, “shall constitute the whole evidence in the above entitled case, and shall be considered and taken in the same manner as if given by witnesses under oath in open Court, or as introduced in the usual and ordinary way in the trial of cases, either before a jury or the Court sitting as a judge and jury.” That the ¹⁰¹ “case upon the evidence aforesaid, shall he tried and argued before the Court, sitting' as. a judge and jury; that on the day of argument to be hereafter fixed by the Court the plaintiffs and defendant by their respective attorneys shall be at liberty to submit whatever prayers or instructions they may deem proper and that, with the Court’s permission, argument on said prayers or instructions and on the facts as gathered from said evidence, shall be made jointly.” The Court at such time announced that it “would read the testimony and that a day would be named on which counsel would have the opportunity to. offer prayers, and to argue them and the facts of the case, of which day counsel would receive due notice.” The 27th day of May, 1915, was the day fixed for such argument, and the counsel were so notified.

On that day the counsel for the respective parties appeared and the plaintiffs offered four, and the defendants nine, prayers. Three of the defendant’s prayers in effect asked that the case be withdrawn from the consideration of the Court, sitting as a jury, because of the want of legally sufficient evidence to entitle the plaintiffs to recover, and it was suggested by counsel for the plaintiffs that “as the prayers made it necessary in arguing them to argue all the facts of the case, argument on prayers and facts be made jointly, and, the Court consenting, it was so agreed, without any reference to said Avritten agreement by anyone.” The case was then fully argued by all the counsel in the case on the facts as Avell as upon the prayers offered. “At the conclusion of the argument * * * the Court asked if there was. any exception to the testimony, to which question counsel for both sides replied 'Kb.’ Thereupon the Court asked counsel for the plaintiffs to supply the Court with the references to- the testimony in the record as to the west side of Lange’s lane,” and the case was then submitted to the Court by both plaintiffs and defendant for final determination. ¹⁰² Thereafter on June 8th, 1915, counsel for the plaintiffs wrote to Judge McLane saying: “In compliance with the request of the Court, we enclose a copy of sor much of the testimony in the case of Easter v. Overlea Land Company as relates to the width, etc., of Lange’s lane with special reference to the west side and we have sent a copy to counsel for the defendant. “Are we right in assuming that the Court will give us notice of its intention to pass upon the prayers and to decide the case, in order that we may taire such action as may appear to us to be proper ?” On the 12th of June, 1915, without notice to the plaintiffs or their counsel, the Court delivered to the Clerk of the Court “the prayers, granted and refused, and a paper on which was written, ‘Verdict for the defendant,’ signed by Judges Dun-caw and McLahe.” To the action of the Court in passing upon the prayers, and at the same time rendering a verdict for the defendant upon the facts of the case, “in the absence of and without notice to the plaintiffs or their counsel, thereby depriving the plaintiffs of the opportunity to suffer a judgment of non pros’’ the plaintiffs excepted. This as we have said is the only