Maryland, Delaware & Virginia Railway Co. v. Johnson

Pattison, J., delivered tho opinion of the Court. There is in this case a motion to dismiss the appeal. The docket entries as disclosed by the Record when it first reached this Court. June 14, 1916, were as follows: “11 April, 1916—-Verdict in favor of the Plaintiff for sum of $500. “11 April, 1916—Judgment on Verdict ‘nisi/ “12 April, 1936—Motion by the Defendant for a new trial. “Defendants’ order for appeal to the Court of Appeals of Maryland filed 27 day of April, 3916. ⁴¹⁴ “2nd May, 1916—-Motion by tbe Defendant for a new trial overruled. “2nd May, 1916—Judgment on Verdict Absolute in favor of tbe Plaintiff for tbe sum of $500 witb interest from the 11th day of April, 1916, and costs.” On September 25, 1916, tbe motion to dismiss tbe appeal was filed; the ground of the motion being that tbe appeal-was taken while the motion for a new trial was still pending and before any final judgment was entered in the case.

The right of appeal to this Court is conferred by statute , (Article 5, section 2), which provides that “from any judgment or determination of any Court of law in any civil suit or action, * * * any party may appeal to the Court of Appeals.” Tbe docket entries, as stated above, show that the appeal was taken on the 27th of April, five days before the judgement was entered and that at tbe time it was taken there was no judgment or determination of tbe Court below from which an appeal could have been taken to this Court. If this is a correct statement of the facts the appeal was prematurely taken and the motion to dismiss the appeal should prevail. Hayman v. Lambden, 97 Md. 33 ; Peoples v. Ault, 117 Md. 631 ; Ely v. Springfield State Hospital, No. 41 of tbe January (1916) docket of this Court. * It is, however, contended by tbe appellant that such entries do not conform to the facts of the caso as to the time when the motion for a new trial was overruled and judgment entered, and to correct such alleged errors in the docket entries, the appellant on the 29th day of September, 1916, filed its petition in the lower Court alleging that its motion for a new trial was overruled on April 24th, three days before tbe appeal was taken and that thereafter upon the same day tbe judgment should have been entered. ⁴¹⁵ The appellee filed his answer denying the facts alleged in the petition and asked that the petition he not received. The Court heard the petition and answer and ordered that the entries of May 2, 1916, he stricken out and that the original docket entries he modified and changed so as to read as follows: “24th April, 19.16—Motion by the Defendant for a new trial ‘overruled.’ “24th April, 1916—Judgment on Verdict Absolute, in favor of the Plaintiff for the sum of $500.00, the sum found by the Jury, with interest from the 11th day of April, 1916, and costs of suit.” But in changing the entries the Cburt made the following statement which becomes a part of the Record under a writ of diminution thereafter granted by this Court: “Upon hearing of petition filed the 29th of September in this proceeding the Court finds that on the 11th of April the verdict was rendered in this case; that on the 12th a motion for a newr trial was made, and was heard on April 15th, that the proposition was then made that the verdict he reduced to $300, that there be a remittance by the plaintiff to that extent, and that the defendant abandon his appeal and pay the judgment: that the plaintiff assented in open court; that the defendant asked time to consult his client, which was allowed; that on the 24th of April, while I was engaged in the trial of criminal eases, in accordance with the understanding theretofore had, counsel for the defendant appeared in Court and announced to me that he declined to pay the judgment of $300 and that he would stand on his right to appeal, whereupon I announced that I would overrule the motion.

The clerk of the City Court (the Court in which the case had been tried) was not present in the Court room at the time, nor was his docket before me, nor was the counsel for the plaintiff present. I did not sec the clerk of the City Court until the 2nd of May, at which time I notified him that the motion for a new trial was overruled, whereupon he made