Gallagher v. Kornblatt

Oeetjtt, J., delivered the opinion of the Court. Jacob Kornblatt, one of the appellees in this case, on Tiny 1st, 1924, filed in the Baltimore City Court a declaration against J. Joseph Gallagher, the appellant, in which he stated that he owned property known a's 674 Bradley Street in Baltimore City and that the defendant owned the adjoining property, known as 676 Bradley Street, and that he, Gallagher, permitted a “rain spout running along the roof of his said property and immediately adjoining that of the plaintiff to be and remain in such a decayed and rusty condition, that the same became a nuisance and full of holes, through which holes the rain water would flow and drop upon the defendant’s ground also adjoining the plaintiff’s wall, and against the plaintiff’s wall and premises, causing same to be in a wet and soggy condition and weakening said "wall thereby and damaged said plaintiff’s property otherwise” ; and that in consequence of these conditions, due to defendant’s negligence, the -tenants of the appellee vacated his property, he lost the- rental thereof, and that he was compelled to repair his premises. The defendant first pleaded to that declaration, but subsequently with the leave of the court withdrew his pleas .and demurred to it on the grounds (3 ) that it was insufficient in law, and (2) that it failed to make proper parties plaintiff. ³⁰⁶ On February 19th, 1925, that demurrer was overruled and thereafter on the same day the plaintiff, with the leave of' the court, amended the nar. by interlining the name of Anna Kornblatt as a party plaintiff, to which the defendant pleaded' the general issue, upon which issue was joined. On the same' day the case was tried before a jury, which returned a verdict for the plaintiffs.

Two' days later the defendant moved for a new trial, and when that motion was overruled he filed a motion in arrest of judgment, based upon matters extrinsic-to the record, which was also overruled. He then took this appeal. The motion for a new trial is not reviewable in this-court (Myers v. State, 137 Md. 487 ), and as the record contains neither testimony nor exceptions, the only- matters presented by it which we can consider at all are the rulings-of the court which are an integral part of the record itself,, such as its ruling on the demurrer and the motion in arrest of judgment. Davis v. Carroll, 71 Md. 569 .

And since the motion in arrest of judgment in this case is based upon matters not apparent on the face of the proceedings and since the record fails to set forth the evidence, if any there was, which may have been submitted in respect to it, for