Johnson v. Venable

Walsh, J., delivered the opinion of the Court. This suit involves a confessed judgment note for $6,000, payable to Henry L. Johnson, the appellant, and signed as maker by Leon E. Tenable, one of the appellees of record, and endorsed by William S. Phillips, now deceased, whose interests are represented by his administrators, Annie L. and W. Raymond Phillips, the other appellees. This is the second appeal in the case, the opinion of the Court in the first appeal being reported in 143 Md. 16 , reference to which is here made for a more complete statement of the facts than will he attempted in this opinion. In the first appeal the Court decided, inter alia, that under the broad terms of the endorsement signed by Phillips he had become a maker of the note, that a joint judgment could be entered against Phillips and Tenable, that the note was a non-negotiable one, and that on the record before the Court at that time the lower court had erred in striking ont the judgment which the clerk of court had entered on the note against both Phillips and Tenable.

After the case was remanded the lower court heard testimony on the motion filed by Phillips to strike out the judgment, and subsequently it again struck out the judgment, but retained the lien pending the outcome o± a trial on the merits. An order for an appeal was then entered by Johnson, the appellant, but this order was later countermanded, and as no exception was taken to the court’s action in striking out the judgment, and no mention is made of the matter in the appellant’s brief, we must assume that the correctness of that action is conceded. The case was later tried before a jury, and the verdict and judgment being in favor of the defendants, the plaintiff appealed. ³⁵⁰ A motion to dismiss the appeal was filed by counsel for the administrators on the ground that the bills of exception were not filed on time. It appears that the rules of court for Dorchester 'County require hills of exceptions to be filed within twenty days from the rendition of the verdict.

The verdict in this case was rendered on May 11th, 1925, on May 26th, 1925, the time for filing exceptions was extended, but. il does not appear to what date the time was extended, and on July 14th, 1925, the time was again extended, to August. 1st, 1925. The appellees insist that the failure of the record to show to what date the time for filing exceptions was first, extended is a fatal defect which renders the second extension invalid, and thus requires the dismissal of the appeal, but to-this we cannot assent. It was conceded 'at the argument that the original order of court granting the first extension had become mislaid or lost, and that the docket entries, though they showed that such an order had been passed, failed to show the date to which the time was extended. The docket entries do show, however, that on July 14th, 1925, the lower court passed an order extending the time to August 1st, 1925, and under these circumstances we must assume that the lower court acted correctly, and granted the second extension within the time covered by the first extension.

There is not the slightest evidence or intimation that it did not do so, and in the absence of such a showing the presumption that the trial court acted in accordance with the law must prevail. The motion to dismiss the appeal is, therefore, overruled. There are twelve exceptions in the record, the first eleven involving questions of evidence, and the last being taken to the action of the learned court below in granting a prayer offered by the defendants’ counsel at the close of the plaintiff’s case. This prayer is not set out in the record, nor is there in the record any agreement or statement as to what the prayer contained.

It is accordingly impossible for us to rule on it. The appellant states in his brief that the prayer in question directed the jury to return a verdict for the administrators of Phillips, but we cannot consider this because ³⁵¹ we are bound to decide matters in accordance with what the record shows, and on this particular matter the record before us is silent. If, as was intimated at the argument, the original prayer was lost, it would seem to have been a simple thing, at least in this case, for counsel to have agreed on a statement as to what the prayer contained, or to have agreed on a copy of it, and to have inserted such statement or copy in the record, hut, whether this could have been done or not, the failure of the record to show the prayer or its contents renders it impossible for ns to consider it. Ray v. Morse, 140 Md. 529, 533 .

And for much the same reason we cannot consider the eleventh exception, which was taken to the refusal of the trial court to admit in evidence testimony given by Phillips at a hearing of the motion to strike out the original judgment entered on the note. This testimony, if relevant to the issues in the trial of the case on the merits, would he admissible. Pr ice v. Lawson, 74 Md. 499, 509 . But it likewise is not in the record, and so we cannot pass upon it.

The chief