Trustees of the Methodist Episcopal Church v. Browne

Bartol, C. J., delivered the opinion of the Court. This is an action instituted by the appellee for an obstruction of a right of way claimed by him, as appurtenant to his land. The case was tried before the Cir - cuit Court, without the intervention of a jury, and the appeal is from its judgment rendered in favor of the plaintiff. No bill of exceptions has been sent up with the record; nor is there anything in the transcript to show that any exception was taken in the Circuit Court to the rulings there -made upon any matter of law, or any agreement or statement of facts, from which this Court can ascertain the points or questions of law raised and decided in the Court below.

There is nothing therefore upon which error can be assigned, no question presented for our review. Tho transcript contains the opinion delivered by the Judges of the Circuit Court, setting forth the grounds and reasons for their judgment; and the appellants’ counsel has asked us to accept the statement therein of what appeared in proof, as a sufficient finding of the facts by the Court below to raise the questions of law decided by them, and enable us to review their judgment thereon. But as was said by the Supreme Court in the Ins. Co. vs. Tweed, 7 Wall., 51 , “ with no aid outside the record, we cannot do this.” Such a practice was condemned by this Court in Tinges vs. Moale, 25 Md., 486 , where it was said in a case like this, of submission to the Court without ¹⁶² the aid of a jury, “more care or precision should be adopted in raising the' questions of law for the decision of the Court below; that parties may not lose the benefit of appeal, or this Court be left to gather them from the opinion of the Court below, or the course of the trial there.”.

To do this, would often be impracticable as it certainly is in this case. The opinion of the Court below, does not purport to state fully and with precision all the facts found in the case, and there is no agreement of counsel to that effect; such an agreement would have secured the benefit of appeal, as was done in The Ins. Co. vs. Tweed before cited. In Norris vs. Jackson, 9 Wall., 125 ; Flanders vs. Tweed, 9 Wall., 425 ; Kearney vs. Case, 12 Wall., 275, and Miller vs. Life Ins.

Co. 12 Wall., 285 , the Supreme Court lay down the rules necessary to be observed, in order to have