Preston ex rel. Hamner v. McCann

Alvey, C. J., delivered the opinion of the Court. It is quite unnecessary to go into a critical examination of all the facts of this case, for it is clear that no appeal ³¹ lies. There has been a motion made to dismiss the appeal, and that motion must prevail. The appeal is from an order striking out a judgment, and reinstating the case for a new trial.

It is only necessary to refer to the principal facts which gave rise to the motion to strike out, and upon which that motion was based. The case was tried before the late Judge Duffy; and the verdict was rendered on the 9th of February, 1892 ; and it appears that during the trial certain exceptions were reserved by the defendants, to be subsequently written out in form, and signed by the Judge. On the same day of the rendition of the verdict, a motion was made by the defendants, in arrest of judgment. The exceptions reserved were not prepared and signed within the thirty days mentioned in the statute, (Code, Pub.

Local L., Art. 4, sec. 170), but the time for signing such exceptions was extended from time to time, by the Judge before whom the case was tried, until the time of his death, which occurred on the 1st of July, 1892. The Judge became seriously ill shortly after the trial, and was not able to attend to business at any time thereafter down to the time of his death. Or, as stated in the affidavit of his son, a member of the bar, — My father became too ill to discharge his official duties on the 19th of February last past, and so continued to the day of his death, with the exception that he was able to sit in Court one day and dispose of a case which had been pending at the time when he was first taken ill. He left the City of Baltimore and the State of Maryland for the benefit of his health on the 29th day of March last, and remained uninterruptedly until the 29th day of April following.

During the whole period of his illness the state of his health was such that he could not have revised bills of exception in an important and contested case ;” and it is shown that the bills of exception were of that character in this case. ³² . Judge Duffy was succeeded in the Court of Common Pleas hy Judge Phelps ; and on the 25th of June, 1892, the motion in arrest of judgment was overruled by the last named Judge, and a judgment the same day entered upon the verdict. On July 7th, 1892, six days after the death of Judge Duffy, the defendants moved to strike out the judgment, and that they be allowed to have a new trial upon the ground, that, by reason of the death of Judge Duffy, they were unable to have their bills of exception settled, signed and sealed by the Judge who tried the case. The motion to strike out the judgment was not acted upon until the 24th of September, 1892, upon which day the judgment was ordered to he stricken out, and that the case should stand for retrial.

It is from this order that this appeal is taken. We assume that the Judge below, in striking out the judgment, acted upon the authority of the case of State, use of Samuel vs. Weiskittle, 61 Md., 48 , and the cases therein referred to; and whether his conclusions were well supported by the facts or not, is a question not open to review on this appeal. He had all the facts and circumstances of the case before him, and if he thought, as doubtless he did, that injustice would or might be done to the defendants, by denying them the right of a review upon the exceptions reserved by them, and that such right had not been lost or forfeited by any neglect or fault of their own, then he was quite