Smith v. Shaffer

Alvey, J., delivered the opinion of the Court. This case has been in this Court on a former appeal by the present appellants, ( 46 Md., 573 ;) and the questions then raised on the record were decided, and without affirming or reversing the decree appealed from, the cause was remanded under the provisions of Art. 5, sec. 28, of the Code, to the end that the proceedings might he so amended as to conform to the opinion then expressed. Upon the cause being remanded, nothing whatever was done in the Court below by way of amendment or further-proceedings, except to submit the cause for a new decree, which was passed, on the same state of case that existed when the former decree was passed. This last decree is supposed to he in conformity to the opinion of this Court; but the appellants, contending otherwise, and that there-are certain questions still open for review, have brought, the case here on a second appeal.

The appellants contend that the decree is erroneous in three particulars: 1. In sustaining the lien for materials furnished prior to April 8th, 1875, as set forth in the lien claim; it being insisted that the notice given of the intended lien was not in time to embrace or extend to-articles furnished before that date. 2. In allowing interest on the claim from April 21st, 1875. And 3.

In decreeing the costs of the former appeal against the appellants. 1. The question raised on the first error assigned is no-longer open on the present record. When this case was here on the former appeal this identical question was not only presented by the record, hut was raised and discussed by counsel, and decided by the Court. In disposing of' ¹³⁵ this particular question on that appeal, this Court said: “The learned Judge of the Circuit Court, in the opinion filed by him, says that the notice was duly given, and that the sale and delivery of the lumber was fully shown.

As the record contains none of the proof taken, the statement of the Judge as to what was proven before him is conclusive. Upon this appeal, therefore, the materials must he considered as having been delivered under one continuing contract, and the notice as being in time to cover all the items charged in the hill of particulars.” And it was not because of the defect of proof in regard to the contract for the materials furnished, or the insufficiency of proof of notice of intention to take the lien as to all the articles charged in the hill of particulars, that the cause was remanded. It was because of other defects apparent in the proceedings. And the question having been thus decided, it is no longer open for review; for notwithstanding there was neither affirmance nor reversal of the decree on the former appeal, by the 28th sec. of Art. 5 of the Code, it was the duty of this Court “to express the reasons for the remanding, and also to determine and declare the opinion of the Court on all points which may have been made before said Court, or which may be presented by the record;’’ and the order or decree of the Court of Appeals is declared to he “ conclusive as to the points finally decided thereby. ” It is contended, however, that what was said by this Court on the former appeal, in regard to this question, was in the absence and without the benefit of the testimony that the record now presents.

But the answer to this contention is, that the testimony embraced in the present record had been taken and returned to the Court below before the making of the decree from which the former appeal was prosecuted, and that it was the fault of the appellants that the testimony now relied on was not before this Court on that appeal. If therefore, the ¹³⁶ appellants suffer any prejudice for the want of the evidence on the former appeal, they have no one to blame but