Phoebus v. Sterling

Offutt, J., delivered the opinion of the Court. John H. Ghingher, receiver for the Deals Island Bank, on September 20th, 1935, brought an action by titling against Harry T. Phoebus in the Circuit Court for Somerset County, and on November 4th, 1935, the plaintiff filed in that case a declaration, in which he alleged that the defendant was a stockholder in the bank, that the bank was insolvent, that its liabilities exceeded its assets by more than the par value of its stock, that the defendant held fifty shares of the capital stock of the bank, ³⁹⁶ and was therefore indebted to the receiver for the par value of the stock, $500, that he had paid on account thereof $250, but had refused to pay the balance. The defendant, on January 21st, 1936, filed general issue pleas. On October 1st, 1936, Warren F. Sterling was substituted for Ghingher as receiver; on the same day Phoebus filed in the case a suggestion and affidavit for removal, and the case was sent to the Circuit Court for Dorchester County for trial.

On November 19th, 1936, the parties agreed that the case be continued, but that it should be tried before the court without a jury at the January term, 1937, of that court. It was not tried then, but was reached for trial on October 26th, 1937, and at that time defendant’s counsel moved for a continuance on the ground that Phoebus had telegraphed his attorney that he was prevented by his duties as Commissioner of Labor and Statistics of Maryland from being present at the trial on that day, and to ask the court to carry the case over to “next Monday.” The motion, which was not supported by affidavit or other evidence, was overruled, the case was tried, there was a verdict for the plaintiff, and on October 29th, 1937, the defendant filed a motion for a new trial and a motion in arrest of judgment. On November 12th both motions were overruled and judgment entered for the plaintiff. This appeal is from that judgment.

The record contains no exception, no prayers were offered by either side, • no objection was made to the admission of evidence, there was no demurrer to the declaration, nor does it appear that the court made any ruling of any kind in the case, except to overrule the motion for a new trial, the motion in arrest, and the motion for a continuance. The ruling on the motion for a new trial is not reviewable in this court (Hartlove v. E. & H. Bottling Co., 160 Md. 507, 508 , 153 A. 850 ; Pugaczewska v. Maszko, 163 Md. 355, 360 , 163 A. 205 ; Mt. Royal Cab Company v. Dolan, 166 Md. 581, 585, 586 , 171 A. 854 ; Von Schlegell v. Ford, 167 Md. 584, 593, 594 , 175 A. 589 ), nor, in the absence of abuse, the