Trustees of Riverdale Presbyterian Church v. Paul B. Pugh & Co.

Offutt, J., delivered the opinion of the Court. Paul B. Pugh & Company, a corporation of the State of New York, was in 1919 seised in fee simple of two lots of ground, designated as lots 17 and 18, block 34, in the town of Riverdale in Prince George’s County, Maryland. On March 1st, 1920, Herman E. Burgess, treasurer of Prince George’s County, alleging that state and county taxes thereon for the year 1919 were due and in arrear, sold those two lots at-a tax sale to James H. Rimmer for $10.63. On December 4th, 1922, Rimmer, by a deed in which his wife joined, conveyed the property to the Trustees of the River-dale Presbyterian Church of Riverdale, hereinafter referred to as the trustees, and on June 8th, 1926, Paul B, Pugh & Company brought an action in ejectment for the recovery of the two lots against the trustees.

The defendants appeared and filed three pleas to the declaration, two intended as general issue pleas, and one as a “plea on equitable grounds.” A demurrer to the last named plea was sustained, issue was joined upon the general issue plea, and the case tried upon that issue before the court, without the aid of a jury, and at its conclusion the court returned the following verdict: “Verdict for the plaintiff for the property described in the declaration,” and “verdict in favor of the defendant and against the plaintiff for the sum of ($564.60) five hundred and sixty-four and 60/100 dollars, for taxes and increased valuation of property in the declaration due to improvements made by defendant; same to be a first lien against the property.” From the judgment on that verdict the defendant appealed. ⁵⁵³ It was conceded at the trial that, except in so far as it was affected by the tax sale proceeding and the conveyances based upon it, the plaintiff’s title was good and he was entitled to recover’, so that the real issue in the case was whether the tax sale to Rimmer was valid. At the conclusion of the whole case the plaintiff offered one prayer which was granted, and the defendant two, of which one was granted and one refused. Those rulings are the subject of the only exception submitted by the record. Appellant conceded in this court that it was not injured by the action of the trial court in sustaining a demurrer to its plea for defense on equitable grounds, so that the only question presented by the appeal is the propriety of the court’s rulings on these prayers.

In dealing with those rulings we are embarrassed by the fact that the evidence referred to in the prayers is not properly a part of the record, inasmuch as it forms no part of the bill of exceptions, and is not authenticated or certified by the judge who tried the case, and cannot therefore be considered by this court. Modern Woodmen v. Cecil, 108 Md. 366 . The only bill of exceptions found in the record contains literally no evidence, although there is in the record what appears to be a transcript of the testimony of certain witnesses, and also what appear to be copies of certain deeds, abstracts from records, and other papers, but they form no part of the bill of exceptions, and are not authenticated in any way. Counsel for the appellee expressed orally, at the argument in this court, a willingness to have this court consider that transcript and those copies in dealing with the exception, but manifestly we could not do that.

This court is essentially a court of appellate and not of original jurisdiction; and in cases such as this its only function is to review the rulings of the lower court, made in connection with the pleadings and the evidence before it, and not to try the case de novo. The law provides a definite and orderly method for bringing to the attention of this court the evidence adduced at the trial of a law case ⁵⁵⁴ (Code, art. 5, pars. 12, 13), and it cannot accept as a substitute therefor an oral agreement of counsel made in this court, after the transcript has been filed in it. There are several reasons for that. One is that the case, as presented by agreement of counsel in this court, might be different from that heard below, and this court would in consequence, in deciding it, exercise original and not appellate jurisdiction.

Another is that it would be unfair to the trial judge for this court, in reviewing his rulings, to act upon evidence which might be different from that adduced before him when he ruled. Another is that such a practice would inevitably lead to disorder and confusion, not only in the argument but in the consideration of cases in this court. In Leonard v. Woolford, 91 Md. 638 , counsel submitted for use in this court, in lieu of the testimony taken at the trial, an agreed statement of what the testimony was. In dealing with the propriety of such a practice we said in that case: “But here an agreement of counsel made subsequent to the trial below, as to what is confessedly only a part of the testimony, is substituted for what the whole testimony actually was, so that it is impossible to know whether the state of facts upon which the judgment of this court is invoked is the same presented to the circuit court, and upon which its judgment was rendered.

If we should assume upon such a record to review that judgment, we should do injustice alike to the court and to the appellee, whose title has been established by that judgment, subject to review only in accordance with settled legal rules, which have been disregarded in the presentation of this appeal.” Again, in Albert v. State, etc., 66 Md. 325, 334 , it was said: “There are papers filed in the case called special exceptions on that point, but they are not signed and sealed by the court, but by the attorneys. From aught that appears in this record the legal sufficiency of the evidence may never have been brought to the attention of the judge, who tried the case. A paper filed in a case by the attorney unsigned and unsealed by the judge, cannot have the force and effect of an exception, although the parties may call it so. The special exception for want of evidence ⁵⁵⁵ must be within the bill of exceptions and not out of it.” And in Ray v. Morse, 140 Md. 533 , it was said: “The evidence or statement of the facts necessary to properly present the rulings of the trial court excepted to should be set out in the bills of exception to be signed by the judge, and can only be brought to the attention of this court by formal bills of exception, or a certificate of the judge or judges who presided at the trial.” In Smith v. Hallwood Register Co., 97 Md. 359 , in speaking of an agreement of counsel as to the existence of certain facts, it was again held: “We have not noticed this agreement, nor the alleged matters to which it relates, in our opinion, because neither the motion, nor the order of court nor the testimony referred to- in the agreement, form part of the record in the case.

We have repeatedly held in other cases that orders passed and proceedings had in the lower courts cannot be brought before us on appeal by agreements of counsel subsequently made. All such orders and proceedings must form part of the bills of exception or the duly certified record.” And in McDevitt v. Bryant, 104 Md. 190 , the court said: “The counsel for the respective parties have agreed that the facts above stated, together with certain docket entries, shall constitute the record for the Court of Appeals in lieu of an exact transcript of the original papers filed in the cause. The only method by which the record could be brought into this court upon an appeal is by a transcript thereof made by the clerk of the court from which the appeal is taken, under the seal of his office, as provided by sections 39 and 40 of article 5, Code 1904. The provision of the law in this respect was disregarded by the counsel and in lieu of the transcript of record the novel method was resorted to of agreeing that certain facts should constitute the record.

Such procedure as that cannot be countenanced. This court must have the record made up and transmitted by the clerk as directed by the law relating to appeals, and counsel will not be permitted, as they attempted to do in this case, to dispense with a transcript of the record, and substitute therefor an agreed statement of facts.” ⁵⁵⁶ In Darrin v. Hoff, 99 Md. 492 , which was a mandamus case, the record contained certain testimony, but there was no “authentication of it by the judge who heard the case and there” was “no agreement of counsel that it” was “the evidence which was in reality adduced before the court.” In referring to it, the court quoted the following expression from Street Commrs. v. Williams, 96 Md. 232 : “And that is the only question before us, because though the record contains considerable evidence on the issues of fact there is no bill of exceptions, no agreement of counsel or no certificate of the trial judge from which this court can know or be apprised that what is in the record was in fact the evidence considered by the court below. Without some such authentication of the testimony we are not at liberty to consider it. Davis v. O’Berry, 93 Md. 751 .” Tyrell v. Hilton, 92 Md. 176 , was an appeal from an order striking out a confessed judgment.

There was no bill of exceptions embodying the facts, but in lieu thereof there was a full and complete transcript of all the testimony and papers used, in the trial of the motion in the lower court, certified by the clerk as agreed by counsel, and in respect to that practice in cases of that character the court said, “The authorities amply sustain this method of presenting the testimony in cases like the present.” But in that case the “agreement” had been filed in the lower court, and the testimony referred to was a transcript of testimony taken in another case which was filed under the agreement. The two last cases, because of the circumstances peculiar- to them, cannot be taken as modifying the general principle stated above, that, in cases such as this, this court cannot accept an oral statement of counsel, as a substitute for the authentication by the trial judge of evidence adduced before him, and that view seems to be generally accepted. In dealing with a supposed stipulation as to evidence adduced before the trial court, it was said, in Mulkey v. McGrew, 2 Wash. Ter. 259 : “We do not think, however, that, under the circumstances of this case, the conduct of the parties would be such as to amount to such a stipulation; ⁵⁵⁷ and, even if it did, this court would not give force to such a stipulation, as, by so doing, it would put it in the power 'of the parties to an action to have the same disposed of here, upon evidence in whole or in part different from that which was introduced in the court below.” To the same effect are Hogden v. Commrs., 10 Kan. 638 , whore it was said: “This paper is not authenticated as required by the statute to constitute it a, case made.

The signature of the judge is as essential to a case as to' a bill of exceptions. Without such statutory authentication we cannot examine into it. The agreements of counsel cannot make a case or a bill of exceptions. That can be done only in the manner provided by the Code.

As was said by the court in Leonard v. Warriner, 20 Wis. 42 : ‘We cannot permit the stipulation of the attorneys to take the place of or do away with the necessity of such signing’ by the judge. If this practice were allowed, attorneys might send up to this court for decision questions never raised in the court below, and even cases to which the attention of the circuit court was never called.’ ” And Jewett v. Hodgdon, 2 Greenl. (Me.) 336, where it was said: “And it is also due in comity to the judge of the court below, that no proceedings be had, tending to reverse his decision, until the whole grounds of it be first certified under his own hand. And for this purpose the cause was continued to the next term.” See also City of Grand Rapids v. Whittlesy, 32 Mich. 192 ; 4 C. J. 454.

As a result of this conclusion, in dealing