Goldschmid v. Meline

McSherry, C. J., delivered the opinion of the Court. The appeal in this case must be dismissed. The facts are these: One Rudolph Goldschmid brought suit in the Circuit Court for Montgomery County against Manche H. Meline and Louis D. Meline in assumpsit on a promissory note. The issues raised by the pleadings were tried, and the trial resulted in a verdict and judgment for the defendant, Manche Meline.

This judgment was entered on November the seventeenth, eighteen hundred and ninety-six. On January the twelfth, eighteen hundred and ninety-seven, the present appellant claiming to be the executrix of the last will of Rudolph Goldschmid, the plaintiff of record who ³⁷¹ had died after the rendition of the judgment and before an appeal had been prayed, went into the Circuit Court, suggested the death of the plaintiff and had herself in her capacity as executrix made a party plaintiff. She thereupon, the same day, entered an appeal in the Circuit Court to this Court. A motion has been made to dismiss the appeal thus taken and the question presented is : Can an executor of a plaintiff, against which plaintiff in his lifetime a judgment had been rendered, enter an appeal after the death of that plaintiff?

At the common law a judgment was reviewable only by writ of error issued out of the Court of Chancery, and it brought up to the Superior Court for review only errors of law apparent on the face of the record, and nothing more. The Statute of 2 Westminster, 13 Edw. I, ch. 31, for the first time authorized bills of exception in civil cases. Rulings of the inferior Court which under the provisions of that statute were made the subject of exceptions, were thus spread upon the record and then brought before the appellate Court by writ of error.

But now, by Acts of Assembly, an appeal to the Court of Appeals has been authorized for reviewing the judgments of inferior tribunals, and this method is “a more convenient and less expensive mode than the writ of error.” Poe's Prac. sec. 826. The legislation conferring this right of appeal is quite liberal, but in the absence of express enactment no appeal can be taken or entertained in any case where a writ of error could not have been availed of at the common law. Savage Mfg. Co. v. Owings, 3 Gill, 498 ; Swan v. Mayor, &c., 8 Gill, 154 .

By the rule of the common law, if the plaintiff in error dies before errors assigned, the death abates the writ; Carroll v. Bowie, 7 Gill, 34 ; Harryman v. Harryman, 49 Md. 70 ; and as, unless specially authorized by statute, an appeal will not lie where a writ of error would abate, it becomes necessary to examine the legislation of this State for the purpose of discovering whether a contingency like the one presented by this record has been provided for. ³⁷² Article 5, secs. 73, 74, 75 and 76, and Art. 16, sec. 8 of the Code, contain all the enactments that have been passed upon this subject, and unless they cover the pending appeal it must abide the rule of the common law as applied to writs of error. Sec. 7 3 prescribes that “no case in which an appeal has been prayed or writ of error applied for, whether the record shall have been transmitted to the Court of Appeals or not, shall abate by the death of either of the parties,” &c. This section obviously relates only to cases where an appeal has been prayed or a writ of