Howard v. Carpenter

Bartol, J., delivered the opinion of this Court. After the opinion of the Court had boon delivered in this case at the present term, the counsel for the appellant filed agreements, by which the motion to strike out the entry of use in favor of Thomas S. Alexander and ²⁵⁶ George W. Dobbin, was withdrawn, by their consent; reserving however to the plaintiff or the representatives of Lady Stafford, the right to renew the motion, and to resist the right or claim of the cestuis que use, by any form of proceeding which would have been admissible, if such motion had never been made, or being made, had not been withdrawn. And thereupon the appellants’ counsel have moved this Court to modify the judgment already entered, or proposed to he entered, and order final judgment to be entered up in this Court in favor of the plaintiff (the appellant) for the land claimed in the declaration. The learned counsel who have appeared in support of this motion, have not misconstrued the opinion of this Court first pronounced in the cause.

In the view which was then taken hy the Court, of the questions presented by the bill of exceptions, and the construction of the Act of 1826, to grant this motion would he simply a matter of course, so soon as the obstacle growing out of the motion to strike out the use should be removed. This conclusion, however, the Court have, had occasion to reconsider, and entertaining some doubts of its correctness, the clerk was directed to furnish to the defendant’s counsel a copy of the motion, and after reading his argument, suggested their doubts to the counsel of the plaintiff, and requested them to argue the question. We have now before us the able arguments submitted on both sides, and shall proceed as briefly as we can, to dispose of the interesting question of practice now presented. By the Act of 1826, ch. 200, sec. 10, this Courtis authorized on any appeal or writ of error, “to give judgment, or award a writ of procedendo for a rehearing of the case, as shall appear to he just.” Construing this provision by the aid of previous legislation, and the practice of the Appellate Court, we cannot better convey its meaning than by referring to the words of the Code, Art. 5, sections 14 and 16, in which the statute law of the State, regulating this ²⁵⁷ subject, as it existed before tlie Code was adopted, is briefly and clearly expressed.

On reversing a judgment, this Court has power “to give such judgment as ought to have been given by the Oourt below. ’ ’ And ‘ ‘in all cases where judgments shall be reversed or affirmed by this Court, and it shall appear to the Court that a new trial ought to be had, a writ of procedendo shall issue.” Ought the Court below to have rendered judgment in this case for the plaintiff? If not, then this motion cannot be granted. Independently of our statute, this is the general rule governing Courts of error and appeal, stated in Tidd’s Practice, cited in argument. When may the Court pronounce final judgment?

To answer this question it is necessary to state some general propositions. 1st. When the issue joined is to be determined by the Court, as on a plea of nul tiel record, or on demurrer; if the Court below err, this Court on reversing the judgment, may give final judgment according to law. Of this class were the cases of Wilson vs. Stonestreet, The State vs. Raney, and some others cited, and the case of McCormick vs. Bradfield, which was a suit upon a record, decided at the