Wegefarth v. Weissner

Thomas, J., delivered the opinion of the Oonrt. This appeal is by the plaintiff from a judgment of the Baltimore City Court in favor of the defendants for costs, and the appellees have filed in this Court a motion to dismiss the appeal on the ground that the bills of exceptions were not presented to them or signed by the judge within the time allowed by the Act of 1916, Chapter 625. . The Act referred to is as follows: “Section 1. Be it enacted by the General Assembly of Maryland, That Section 173 of the Acts of 1886, Chapter'184, codified in the revised Charter of Baltimore City as section 316, be and the same is hereby repealed and re-enacted, with amendments, so as to read as follows: “Bills of exception may be signed in any cause landing in any of said courts, at any time within the period that the parties, or any of them, shall have the right to file an appeal from the rendition of the verdict by the jury or the findings of the court upon the issue of fact in said cause; and upon filing the order for such an appeal, the time for signing said bills of exceptions shall thereby he further extended until ten days before the period within which it is required that the record shall be transmitted to the Court of Appeals; provided that the party appealing, or his counsel, shall submit the bills of exceptions to the appellee, or his counsel, not less than thirty days prior to the time that the record must he filed in the Court of Appeals, for the purpose of amendments or additions to the said hills of exceptions, and the appellee, or his counsel, within fifteen days after said bills of ⁵⁹⁷ exceptions shall have been submitted to him, shall return said bills of exceptions to the appellant, or his counsel, with such amendments or additions as he may desire.

And upon his failure to return said bills of exceptions within said time, the hills of exceptions shall be signed by the Court, as originally prepared by the appellant, or his counsel. If the said appellee, or his counsel, shall return the said hills of exceptions to the appellant, or his counsel, with his amendments or additions, as hereinabove provided, the said bills of exceptions, with such amendments or additions shall forthwith be presented to the judge before whom the said case was tried, who shall settle the same within five days thereafter.” According to the terms of this Act, the bills of exceptions may be signed at any time during the .period within which the parties have a right to appeal from the “rendition of the verdict of the jury or the findings, of the Court upon the issue of fact in said cause,” and upon the filing of an order i'or an appeal, the time for signing the bills of exceptions is further extended until ten days before the expiration of the period within, which the Record is required to, he transmitted to the Court of Appeals; provided the appellant submits the bills of exceptions to the appellee, or his counsel, for such amendments or additions, as he may desire, not less, than thirty days .before the expiration of the time within which the Record must he transmitted to the' Court, of Appeals, and the appellee, or his counsel, shall within fifteen days from the time he receives them return the bills of exceptions^ with the amendments and additions he desires, to the appellant, or his counsel. The1 Act then provides that upon the failure of the appellee to return the bills of exceptions,, etc., within the time mentioned, they “shall be signed by the Court, as originally prepared by the appellant, or his counsel,” and that if the bills- of exceptions, with the additions and amendments desired by the appellee, shall he returned to- the appel ⁵⁹⁸ lant as therein provided, they shall be forthwith presented to the judge, “who shall settle the same within five days thereafter.” The Record shows that the verdict in the case in favor of the defendants was rendered under the instructions of the Court on the 28th of June, 1917, and that the final judgment was entered on the 2nd of July, 1917. On the 20th of July the Court extended the time for signing the bills of exceptions until the 1st of September, 1917, and by subsequent orders, each one of which was passed by the Court before the expiration of the time allowed in the last previous order, the time was further extended “until and including” the 15th of November, 1917.

The order for the appeal was filed on the 16th of August, but the bills of exceptions were not submitted to the appellees until the first of November, 1917, and on that day counsel for the appellees notified counsel for the appellant that the bills of exceptions had been submitted to- them too late, and that, without waiving the provisions of the Act, they would examine same and return them with, such amendments as they desired “as expeditiously as possible within the time allowed by law.” The bills of exceptions, with a long list of the additions and amendments desired by the appellees, were returned to the appellant on the 12th of November, and on the 15th of November, 1917, they were signed by Judge- Heuisleb, who certified that he did so- “over the objections of the defendants-that the said bills of exceptions were submitted too late to the appellees or their counsel, and too late to the Court,” and that no objections were made to their contents. - The appellees insist that the provisions of the Act “as to time” are mandatory, while the appellant contends that the Act does- not deprive the trial Court of the power1 to extend the time for signing bills, of exceptions; that it does not apply to appeals from judgments, and that the appellees by accepting, i*eviewing and suggesting amendments and addi ⁵⁹⁹ ticns to the hills, of exceptions, waived their right to object that they were not given the exact time allowed by the Act. That part of the Act which provides that the hills of exceptions may he signed at any time within the period that the parties have the right to file an appeal “from the rendition of the verdict by tbe jury or tbe findings of the Court upon the issue of fact in said cause,” when applied to ordinary suits at law, must be construed to mean that the hills of exceptions may be signed within the. period an appeal can be taken from the judgment. -The Act was obviously intended to cover all cases in which bills of exceptions are required, while the language employed would suggest that the. framer of the Act had in mind cases, such as the trial of issues from the Orphans’ Court or courts of equity, in which no judgr ment is entered in the. Court of law, and the appeal is taken, on. exceptions, from a, ruling or “determination” of the Court. In ordinary suits, at law there can be no. appeal from the verdict (New & Sons v. Taylor, 82 Md. 40 ; Mass.

Bond. Co. v. Casualty Ins. Co., 129 Md. 192 ), and the right to appeal does not arise until a final judgment has been entered. Hayman v. Lambden, 97 Md. 33 .

In cases where the appeal is from the judgment of the Court, this provision of the Act must be held to authorize the signing of the bills of exceptions at any time within thei period an appeal may he entered from the judgment, and in the eases where no judgment is entered in the Court of law, the bills of exceptions may be signed witbin the time the appeal may be taken from a ruling or determination of the Court. Code, Article 5, Sections 5 and 6; Hoppe v. Byers, 60 Md. 381 . The order for the appeal having been filed on the 16th of August, the time for signing the bills, of exceptions wa,s thereby extended to ten days before tbe1 expiration of the three months within which the Record should have been sent to the Court of Appeals (Code, Article 5, Section 6), and the Act required the appellant to submit, tbe bills of exceptions to tbe appellees, not less than thirty days before the ⁶⁰⁰ expiration of said three months. The bills of exceptions were hot presented to the appellees until the first of November, 1917, and were not signed by the Court until the 15th of November, but, as w© have said, the Court had, by its several orders, extended the time for1 the signing of the bills of exceptions “until and including” the latter date, and the question is> Did the Court below have the authority to extend the time and to sign the exceptions under the circumstances stated ?

Section 316 of the Charter of Baltimore City, which was repealed by.the Act of 1916, provided: “Bills of exception may be signed in any cause pending in any of said courts at any time within thirty days from the rendition of the verdict of the jury or the findings of the court upon the issue of fact in said cause, but not thereafter, unless the time for signing said bill of exception shall have been previously