Visnich v. Washington Suburban Sanitary Commission

Per Curiam. The appellants (Virginia K. Casey Visnich et vir), having ⁵⁹⁰ appealed from an order denying allowance of expenses allegedly incurred by them in a condemnation proceeding that had been dismissed without prejudi'o after trial had begun, thereafter filed (within the time limited by Maryland Rule 625) a motion for a reconsideration of the order appealed from. In due course, the motion for reconsideration came on for hearing before the trial court while the appeal was still pending and was overruled. Whereupon, the appellee (Washington Suburban Sanitary Commission), relying on Tiller v. Elfenbein, 205 Md. 14 , filed in this Court a motion to dismiss the appeal on the ground that the action of the appellants, in electing to proceed with the hearing on the motion for reconsideration, constituted a waiver or abandonment of the appeal.

The motion to dismiss, upon the order of this Court pursuant to Rule 837, was heard in advance of argument on the merits. The only question posed by the motion to dismiss is whether the trial court erred in hearing the motion for reconsideration while the appeal was still pending. We think the court lacked authority to entertain the motion under the circumstances. In Avirett v. State, 76 Md. 510 , it was stated that if upon the entry of an appeal a trial court is without authority to hear a motion to strike out a judgment, then, instead of the appeal having been waived or abandoned by a hearing of the motion,