Hopper v. Jones

Stone, J., delivered the opinion of the Court. On the 29th of August, 1884, John Fletcher Jones, administrator cl. b. n. of Charles W. Jones, issued out of the Superior Court of Baltimore City, a scire facias to revive a judgment against Harrison Hopper, for the sum of two hundred and seventy-three dollars, and costs, which judgment was obtained by Charles W. Jones in his life-time, on the 13th day of December, 1882. The sheriff returned the scire facias as made known to the defendant Hopper, and on the 5th of March, 1885, there was a fiat duly entered on the scire facias, for want of plea. On the 14th of March, 1885, the defendant Hopper prayed an appeal, from the judgment of fiat rendered in the scire facias case.

This judgment in the scire facias case must be affirmed. The judgment was obtained in open Court, and is regular in form, and no question whatever appears by the record to have been tried and decided by the Court below, and we are therefore precluded by law from deciding any point or question in that case. Indeed we do not understand the appellant to question this. But at the same time that he appealed from the judgment in the scire facias case, to wit: on the 14th of March, 1885, he also prayed an appeal from the original judgment, of Charles W. Jones against Harrison Hopper, which was obtained on the 13th of December, 1882, and the only and real object of the appellant, was to bring before this Court, in this mode, the original judgment above mentioned.

It appears from the records of this Court, that at the trial of the original case of Charles W. Jones vs. Harrison Hopper, tried on the 13th of December, 1882, the appellant Hopper, reserved exceptions to the rulings of the Court" below, which were duly signed and sealed by the ⁵⁸⁰ Judge who tried the case, and that the appellant prayed an appeal to this Court on the 4th of May, 1888, and within the time allowed by law, for praying such appeal. It also appears from the record of this Court, that between the trial of the case, and the entry of the appeal, the appellee, Charles W. Jones, died, and upon motion, that appeal was dismissed upon the ground that the appeal was prayed against a dead man, and when there was no living plaintiff, party to the record. The appellant now insists' that upon the issue of the scire facias, for the first time since the death of the original plaintiff, Charles W. Jones, there has been made a living party to the record, against whom he could pray an appeal, and that he is now entitled to that appeal, notwithstanding the long lapse of time since the obtention of the original judgment. We may well admit that it was a hardship on the appellant, when his appeal was dismissed, without any fault on his part, and we would readily grant him a hearing now, if it. could be done consistently with the established rules and practice of this Court.

Appeals in this State are regulated by positive law, and the law in force at the time of the trial of this case, and which is applicable to it, provided that all appeals, or writs of error from any judgment or determination of a Court of law, to the Court of Appeals of this State, should be taken within nine months from the date of such judgment or determination, and not afterwards. The judgment in this case was rendered on the 18th of December, 1882, and the appeal was prayed on the 14th of March,. 1885, more than two years from the date of the «judgment. To allow an appeal now, would be for us to engraft upon the rule an exception, not contemplated by the