Jones v. State

Briscoe, J., delivered the opinion of the Court. This appeal, is from an order of the Circuit Court, for Wicomico ■ County, overruling a motion to strike out a judgment which had been rendered on the 4th of June, 1910, by that Court, in favor of the plaintiff against the defendant, Benjamin S. Jones, for the sum of $655.81, with interest and costs. The suit in which the judgment was entered, was instituted by the plaintiff, the appellee here, on the 2nd day of May, 1902, to recover damages alleged to have been caused by the issuing of an injunction at the instance of the appellant and was brought upon the bond filed in the injunction case. The suit, was brought in the Circuit Court for Worcester County, but was removed to Wicomico county and the ⁶⁹ judgment here sought to be stricken out, is the result of the third trial of the issues in the case, the jury on each trial finding a verdict in favor of the plaintiff.

The first judgment was reversed on appeal to this Court, and a new trial awarded, reported in Jones v. Jones, 101 Md. 512 , for errors of the Court below, in its rulings on the prayers. The second verdict of the jury for the plaintiff and damages assessed at $486.31 was rendered on the 5th of April, 1906, and was set aside by the Court below and a new trial granted on the 28th of September, 1908, because as stated by the appellee in her answer to the motion to strike out this judgment “owing to the long delay in preparing exceptions, the Court refused to sign them, not being able to recall the testimony as given at the trial.” Upon the third trial and the one we'are now considering, the following proceedings were had, as set out by the docket entries in the case: 1910 — April 14 — Verdict of jury for plaintiff and damages assessed at $655.81. 1910 — April 14 — Motion and judgment on verdict nisi. April 14 — Plaintiff’s first and second prayers granted filed. April 14 — Defendants’ first, second, fourth, fifth and eleventh prayers granted filed.

April 14 — Defendants’ third, sixth, seventh, eighth, ninth and tenth prayers rejected filed. April 14 — Leave granted defendants 30 days to file exceptions. April 15 — Motion for new trial filed. May 12 — Order of Court granting the defendant extension of time to June 13, to file exceptions.

June 4 — Motion for new trial overruled. June 4 — Judgment extended in favor of the plaintiff for the sum of $655.81, with interest and costs. June 13 — Order of Court extending time to July 13th, for defendant to file exceptions filed. June 14 — Order for an appeal and affidavit filed. ⁷⁰ June 16 — Appeal bond approved and filed.

July 12 — Order extending time to August defendant to file bills of exceptions filed. 13th, for July 27 — Bill of exceptions filed with Judge as per letter filed. Pattisou September 15 — Petition and motion to strike ment filed. out judg- 1910— September 17 — Answer filed. 1911— Pebruary 20 — Argument, argued. Sub Quria. July 3 — Affidavit of John H. Handy filed. .

September 16 — Bill of exceptions filed by Judge Patti-sou, with, his declination to sign endorsed thereon. September 16 — Motion to strike out judgment overruled as per order filed. September 27 — Leave granted defendant to file exceptions by October 3, 1911. September 30 — Petition and order of Court extending ' time to October 17 to defendant to file bills of exceptions filed.

November 15 — Order for an appeal and affidavit filed. The motion to strike out the judgment and to re-instate the case, for trial, is based upon the single averment, set out in the appellant’s petition, that the prayers of both plaintiff and defendant granted at the trial of the case, had been lost and that no complete record, of the rulings of the Court can be presented here for review, and no proper bills of exception can be prepared until the prayers are found. While the plaintiff in her answer to the defendant’s petition does not deny the allegations of the petition, she avers, that even, if the prayers are lost or misplaced, the plaintiff or her attorneys are not responsible, neither she nor they having had or seen same since the trial or connived at or induced the loss or misplacement of the prayers in any manner, and the loss or misplacement of the prayers, while perhaps a misfortune to the defendant, Benjamin S. Jones, is no fault of the plaintiff and no cause for striking out the judgment. ⁷¹ And it is further averred that the filing of the exception as to