Hays v. Philadelphia, Wilmington & Baltimore Railroad

Pearce, J., delivered the opinion of the Court. The appellant in this case brought suit against the appellee in the Circuit' Court for Harford County to recover damages for personal injuries caused by the alleged negligence of the appellee, and the verdict and judgment being in favor of the appellee, this appeal was taken. The appellee has moved to dismiss the appeal, on the following grounds: ⁴¹⁵ xst That no appeal was actually taken from the judgment of the lower Court; 2nd. That no written order for appeal was ever filed; 3rd.

That no verbal order for appeal was entered on the docket; 4th. That the verbal order for appeal alleged to have been given on the day the judgment was entered on the docket, was given to the clerk at a time when the Court was not in actual session, and was not entered on the docket until more than two months after the entry of the j udgment. With this motion was filed a certificate of the clerk of the Court that the September Term, 1903, of the Court commenced on the second Monday, of that month, that the jurors were finally discharged October 16th, 1903, and the next session of that Court commenced on the second Monday of November, 1903; that the motion for new trial was overruled and the judgment entered October 16th, 1903, and that on that date appellant’s attorney handed to him the papers in the case, stating that he desired to enter an appeal, and directed him to make out the record and transmit it to the Court of Appeals; that he did make out and transmit the record, but omitted to enter the prayer for appeal until January 27th, 1904, when, his attention being called to the omission, he entered the same on the docket as if made October 16th 1903. With the motion to dismiss was also filed an affidavit of appellee’s counsel, stating that the motion for a new trial was submitted without argument to Judge Watters, then one of the Judges of that Court, and before whom alone the cause had been tried, on October 16th, 1903, at his private office in the Masonic Temple at Bel Air, the county seat of Harford County; that the motion was then and there overruled, by an order in writing signed by the Judge (a copy of which duly certified was filed with the affidavit) and that said order was at once taken by the affiant to the clerk, and filed and entered on the docket; but that no other order, either written or oral, was given by the Court, and the clerk of the Court was not present, and the Court docket was not before the Judge, and Court was not in session at the time. ⁴¹⁶ On April 12th, 1904, a writ of diminution was granted the appellant to enable him to bring up an amendment which had been made to the record, and from this diminution record it appears that the Circuit Court for Harford County on April nth, 1904, upon the petition of appellant’s counsel, and the accompanying affidavits, directed the clerk to correct the record in this cause, by entering upon his docket therein, “a prayer by the said plaintiff, Alexander F. Hays, for an appeal from the judgment in said cause rendered October 16th, 1903, to the Court of Appeals of Maryland, as of said 16th day of October, 1903.” This order was made by Judge Burke, the term of Judge Watters having in the meantime expired, and was based upon the following evidence: 1st.

An affidavit of appellant’s counsel stating that when the motion for a new trial was overruled by Judge Watters, the Judge then handed him the papers, directing him to hand them to the clerk, and to direct the clerk to enter upon the docket,' “the motion for a new trial ■overruled, judgment for the defendant, and an appeal by the plaintiff,” and that he carried out these instructions, and on that day “took an appeal for the plaintiff from the judgment in said cause, in open Court, before Judge Watters, after said Judge had overruled said motion for a new trial, and had given judgment for defendant, and then requested the clerk to make out and transmit the record.” 2nd. An affidavit of Judge Watters confirming in every respect the facts alleged in the foregoing affidavit, so far as relates to his own directions, and the taking of the appeal. 3rd. A certificate of the Clerk of the Court, stating that on October 16th, 1903, “the motion for a new trial was overruled and judgment entered on the verdict, and thereupon appellants’ attorney, on said date, handed the papers in the case to the clerk, and státed he desired to enter an appeal, and directed him to make out and transmit the record to the Court of Appeals. That the clerk, thereupon, considering an appeal intended, made out and transmitted the record, but omitted to enter on his docket the prayer for an appeal till ⁴¹⁷ subsequently, when his attention being called to the fact, he made the entry accordingly.” The diminution record shows the following entry: “April nth, 1904.

Prayer for appeal by plaintiff in open Court to the Court of Appeals from judgment of October 16th, 1903, filed as of October 16th, 1903, per order of Court.” Subsequently, on April 14th, 1903, Judge Watters fileda second affidavit, stating that the September Term of that Court convened on the 2nd Monday of September, 1903; that the jury was discharged October 7th, 1903, after which the September Term was adjourned from day to day until the 2nd Monday in November, 1903, when it was finally adjourned, and the November Term began; that at a session of said September Term held by him on October 16th, 1903, the appellant took an appeal in said cause, before him in open Court, to the Court of Appeals from the judgment rendered by him that day on the verdict, after he had overruled the appellant’s motion for a new trial, which he had previously set down for hearing on that day at request of appellee’s counsel, and Judge Burke having directed the clerk to file said additional affidavit, the clerk has certified the same, with said order at the request of appellant’s counsel as an addition to the diminution record. The question of practice involved being one of importance as a possible precedent, and the facts being somewhat peculiar, we have set them out fully that there may be no misapprehension as to the ground and scope of our decision. In Gaines v. Lamkin, 82 Md. 129, where there was no amendment of the record the question before the Court as stated by the late Chief Justice Robinson, was “whether a mere verbal order for an appeal, not entered of record till after the expiration of two months from the date of the judgment, is an appeal properly taken within the meaning of the Code,” and the conclusion of the Court was that “every safe and sound principle of construction requires us to hold that where a mere verbal order for an appeal is given, not in open Court, the entry of the appeal must be made within the time limited ⁴¹⁸ by the statute.” The italics are .those of the opinion quoted. A closely analogous question was considered upon a motion to dismiss an appeal in Livers v. Ardinger, go Md. 36, where also there was no amendment of the record.

In that. case, the February Term of the Circuit Court for Washington County met on the 13th of that month, and the regular sitting. of .the Court continued, until March 22nd, when the petit jurors'were discharged for the term. During this period, the judgment appealed from was rendered. A rule of that Court .provides that “in every case, unless otherwise expressly ordered by the Court, bills of exception shall be prepared and submitted to the Court during the sittings of the term at which such bills of exception shall be taken.” The bill 01 exception in that case' was presented to the Judges on the 10th day of April for their approval and signature, and the question thus presented, was whether the Court was then “sitting” within the meaning of the rule. The Court sáid, “An inspection of the record will show that the February Term of the Washington County Court was never formally adjourned-until the May Term actually began.

After the continuous sittings ■ from day to day ceased; after the.jury was discharged for the term, and, presumably, after the general business, as indicated by the calendar, had been disposed of, there .were sittings on-special days during which special matters were attended to; as for instance, on one oc.-r oasion a motion to quash was heard; on another, several parties were sentenced to various terms of imprisonment; on another, jurors for the ensuing term were drawn, and on other occasions nothing at all. Can these special sittings be parts of the “sittings of the term” as contemplated by the Court which prepared and established the rule? * * * * According to the practice throughout the State, the Circuit Courts meet on the first day of the term, and