Wheeler v. Briscoe

Bowie, J., delivered the opinion of the Court. The cause in which the present appeal is taken, was tried at the March Term of the Circuit Court for Howard County, 1875. ³⁰⁹ It appears from the record, the jury were sworn on the 5th April, 1875. The verdict was rendered for plaintiff April 7th, 1875. April 9th, 1875, motion and reasons for a new trial were filed.

On April 27th, 1875, an order for an appeal from the judgment was filed. On the 1st of May, 1875, the plaintiff filed a motion to require the defendant to abandon his exceptions, before the motion for a new trial was heard; and on the same day, defendant filed an order, withdrawing the motion for a new trial; on the same day there was a judgment entered on verdict. The appeal appears from these entries, to have been taken pending the motion for a new trial, and before final judgment. On the 29th of September, 1875, the plaintiff moved the Court not to sign any bill of exceptions in this case, upon the ground that the defendant has unreasonably delayed the presentation thereof to the Court or to the plaintiff’s counsel, until September 6th, 1875, being the first day of the September Term of this Court.

The Court overruled the motion, and signed the bill of exceptions, with the following memorandum prefixed: “ Memorandum. — This bill of exceptions was not presented to the counsel for the plaintiff or the Court, until the sixth day of September, 1875, being the first day of the September Term of this Court, the March Term having expired, and the June Term having intervened since the trial of the cause; whereupon, the plaintiff by his counsel, objected to the signing thereof, and moved the Court not to sign the same, but his objection and motion were overruled, and the bill is accordingly signed and sealed, this 29th day of September, A. D., 1875. Edward Hammond, [seal.] Wm. N. Hayden, [seal.]” ³¹⁰ The appellee contends that the appeal should he dismissed, 1st. Because it was prematurely taken, there hging no final judgment in the case at the time the prayer for an appeal was filed. 2nd.

The hill of exceptions cannot be considered bjr this Court, because it was not signed in proper time. There is no rule of Court apparent on the record, regulating the practice of the Court below, and we are compelled to infer there is none existing on the subject. In the case of Roloson vs. Carson, 8 Md., 226 , it is said, “ The Act of 1834, ch. 233, sec. 11, provides that bills of exception must be signed -before the verdict is rendered, if the party requires it. Under this Act, the Court has a discretion as to what time the exceptions shall be either prepared or signed, provided they are completed prior to the verdict; and consequently the action of the Court in this instance, in regard to directing the cause to be proceeded in by the examination of witnesses, against the objection of the plaintiffs’ counsel, who was writing the exception, we think is not subject to revision on appeal.” The Court then declare, that in their opinion, as a general rule, the most appropriate time for preparing an exception, is immediately after the decision is excepted to, when the facts are fresh in the recollection of the Court and the counsel, and the witnesses are in attendance, affording an opportunity of