Mayor of Frostburg v. Tiddy

Irving, J., delivered the opinion of the Court. This appeal is from the refusal of the Circuit Court for Garrett County to strike out the judgment rendered therein. Upon the 15th of May, 1884, being the last day of the actual sifting of the Circuit Court for Garrett County, at its May Term, a verdict was rendered by a jury, in favor of the appellees, in that Court against the appellant. A motion in arrest of judgment was made and filed on that day, and at the same time a written agreement of counsel for both plaintiffs and defendant was filed that the Judge of the Court “ may hear and decide the motion in arrest of judgment in the above cause, at any place in his circuit, and make an order or decision therein at any time.” Upon the next day at Cumberland, in Allegany County, the motion was heard, and the day following, being the 17th of May, the Judge rendered his decision, and sent a written order to the clerk of the Circuit Court for Garrett County, overruling the motion in arrest and directing judgment to be entered.

At the September Term, 1884, of the Court, a motion to strike out the judgment, entered in pursuance of the order, was filed by the appellant, which was overruled, and this appeal was taken. It is contended, that the judgment was improvidently ordered, and entered, because the Court was not actually in session, and this judgment could only be entered in open Court. A fair construction of the agreement of counsel respecting the matter, clearly, we think, contemplated the final adjudication, of the question presented, by the Court in recess; and if the ordinary course of entering a judgment nisi, had been pursued after verdict rendered, there could have been no possible controversy; for, in such case, the cause shown against the judgment by the motion in arrest having been adjudged insufficient, and the motion accordingly overruled, and the four days having elapsed, the ⁵¹⁷ judgment would have become final as matter of course. In such case the order, overruling the motion, would have been indisputably within the provisions of section 45, of Article 29 of the Code, as amended by the Act of 1884, chapter 27, which gives full power to the Circuit Judges to make orders at common law at any place and time in the Circuit “to take effect in any part of their Circuit.” This does not appear to have been done.

The docket entries are not in the record; but the record indicates no such action as having been taken, and as the judgment, in all respects, seems to pursue the order, we infer, that the usual practice of entering a judgment nisi on the verdict was omitted ; and we must treat the judgment as first and finally entered upon and pursuant to the Court’s order. The question is, has the Court power, in recess, to give such order and have such judgment entered ? If section 45 of Article 29, as it now stands, does not give the Court this power, the agreement of counsel could not confer the jurisdiction. An agreement may waive a right, hut cannot confer jurisdiction on a Court; so that the agreement cannot affect the question to be. decided.

Looking to the object which the Legislature must have had in view in the passage of section 45, Art. 29, we have no difficulty in construing it as justifying the order. It is a reasonable construction, beneficial to suitors, and has been often acted on by the Judges in the State. Under it Courts have frequently taken such motions, and even cases submitted to the Court without the intervention of a jury, sub curia, and, after examination, have disposed of them by written order to the clerk as to the entry to be made. Of course, in cases of submission without the intervention of a jury, if the finding is to be against the plaintiff, the Court would not decide the case in recess, unless by the terms of the submission there was a waiver of the right to be called in order that plaintiff might suffer a non pros, at the last moment.

In the case of Ecker vs. First National Bank of ⁵¹⁸ New Windsor, 62 Md., 520 , we have a case where the