Gephart v. Strong

Bowie, C. -X., delivered tbe opinion of this Court: A preliminary question occurs in this case, on the motion to dismiss the appeal, which is founded on two reasons; first, that the matter is too small in amount to be entertained by an appellate tribunal; second, because the order appealed from was passed on a summary proceeding, and on testimony of the witnesses, and the appellants did not give notice of their intention to appeal, and request the testimony to be reduced to writing as required by Article 5, sec. 40, of the Code. In support of which latter position, Cecil vs. Harrington, 18 Md. Rep., 510 , is referred to. There is no limitation of the right of Appeal from Orphans’ Courts, in this State, by reason of the amount involved. “In all decrees, orders, decisions and judgments, made by the Orphans’ Court, the party who may deem himself aggrieved by such decree, order, decision or judgment, may appeal to the Court of Appeals;” within thirty days after such decree, &c. Code, Art. 5, sec. 39.

The maxim iCde minimis non curat lex,” cannot prevail against an express statutory provision. The second reason does not seem to be sustained by the record or the authority cited to support it. The appellants were made defendants by tbe original petition, and summoned. They appeared and answered.

The answers being excepted to, they filed additional answers. Immediately after which, the case being regularly continued, the witnesses were produced, sworn, and their testimony reduced to writing, before any other action was bad by the Court. If such was not the fact, the record misrepresents the proceedings of the Court, a presumption too violent to be made. There is no coincidence between the facts of this •case and those of Cecil vs. Harrington, 18 Md. Rep., 510 .

The party appealing in that case was not originally a party to the proceedings appealed, from. Some time after the order appealed from was passed, James Cecil, the appellant, appeared by counsel and prayed an appeal, and after praying tbe appeal, his counsel prepared a statement ⁵²⁶ of the evidence, as taken down in writing by one of the judges of the Court, during the trial, and asked the Court to inspect it and correct it if necessary, and order the register in the usual way to prepare a transcript therefrom for the purpose of appeal. On this application the Court passed an order reciting, that they had inspected the evidence so prepared, and found it substantially correct, and directing it to be filed and made part of the record to be transmitted to the Court of Appeals; on this state of facts this .Court said: “The modo of proceeding to obtain the benefit of an appeal in such a case, is prescribed by the 5th Art. of the Code, sec. 40.” * * * “This requirement has not been gratified in this case. The record contains no depositions properly so called.

What