Johnston v. George

Le Grand, C. J., delivered the opinion of this court. It was agreed in this cause, if the court should be of opinion the appellants were entitled to a writ of dimintion, as asked, that then the record should be considered as amended, so as to make.it appear an appeal had been taken from the rendition of the judgment on the award, as well as from the refusal of the court to sustain the motion to strike out said judgment. We have no doubt that under the rule and practice of this ⁴⁵⁵ court the appellants, on the suggestion filed, are entitled to the writ. The suggestion contains all the necessary averments of the fact, that the appeal was asked from the original judgment, and the court must assume the truthfulness of the statement.

Any other mode of procedure would impose, necessarily, on the court the duty of carefully examining the records in advance of the trials — and that too in a disputatious spirit — to discover whether or not the proposed amendment would be of importance to the interests of the party desiring it. Such a task would consume the time of the court to the great injury of the interests of its suitors. It has always been customary for the court to confide in the sworn statements of its officers, and there is certainly nothing in the circumstances of this case to require a departure from that habit. Being of the opinion that the appellants are entitled to their writ, under the agreement, we are to consider the record amended, so as to show an appeal both from the original judgment and from the refusal of the court to strike it out.

It appears from the record that there was rendered against the appellants, as administrators of Arthur Johnston, a judgment on an award made under reference of Washington county court. The proceeding originally commenced by an action against William Price, Thomas Martin and Arthur Johnston. At March term 1847, the death of Johnston was suggested; subsequently, the appellants, as his administrators, appeared, and the case was carried on against them. In the case against Price & Martin, ( 4 Md. Rep., 514 ,) William Price was undoubtedly the attorney for the defendants.

Under the order of court, in pursuance of the act of Assembly, both that case and the one which was carried on against the appellants, as administrators, were referred to certain parties. The referees made an award, which was filed in both cases, and on which a judgment was entered in both. To this award exceptions were filed in each case by “the counsel for the defendants.” These exceptions were not entitled in any cause, nor signed by any counsel, the only averment in the record in regard to them being, that they had been filed in ⁴⁵⁶ each case “by the counsel for the defendant;” but this, say the court, in the case of Price & Martin, vs. Thomas & George, 4 Md. Rep., 521 , “was sufficient to impress them with the stamp of genuineness, which is all that is