Whitridge v. Pope

⁴⁸⁷ Worthington, J., delivered the opinion, of the Court. - This purports to be a cross-appeal on behalf of the - defendants in the case of Pope v. Whitridge, ante, page 468, which was argued here at the January Term, 1909. As will be seen by reference to the opinion filed in that case,- this Court did not confine itself to a review merely of the rulings of the lower Court which were against the appellants in that appeal', but considered also those which were against the appellees, so far as such rulings were distinctly presented to the Court for its consideration and review. The authority for so doing, we think is not only well establishéd, but founded upon reason. In that part of the excellent work of Mr. John Prentiss’ Poe, on “Pleading and Practice in Courts of Common Law” devoted to the subject of madamus, it is said: “The right of appeal is especially granted by the Code in all cases of man-’ dainus where the issues of fact have been determined by the Court below, and- the Court of Appeals is not restricted to a review of the rulings of the Court below, but determines upon' th'e whole record whether the order appealed from is correct or not.” 2 Poe’s Practice, sec. 713.

And in Manger’s Case, 90 Md. 659 , this Court said: “But in an appeal from an order granting a mandamus, when thé issues of fact have been determined by the Court below without the aid of a jury, -we are not, as in ordinary appeals from a Court of law confined to a review of the rulings on questions. of law présented by exceptions. • - In such instances-the appellate Court must-inquire whether the writ was properly granted or properly refused after an. inspection of the whole record, and is not restricted to an instruction or limited to determining whether that instruction' was right or wrong; particularly as no instruction is heeded as a basis to bring up for revision the final order when the case is heard below without the intervention of a jury.” If this Court must in such cases review'the whole record, there is no occasion for an appeal on the part of the appellee. > All that is required is that the ruling, to which objection is ⁴⁸⁸ made, should be elearly made to appear in'the record together with the ground of such objection, so that the points or questions in -controversy may be distinctly presented to this Court for review. While wé' look to the whole record in order to determine whether the writ was properly granted-or properly refused, yet it is necessary that the points-or questions in controversy be clearly presented for our consideration, as it cannot be expected'of this Court to go through-the record unaided and to discover from their own examination what those points or questions are. As we shall presently see the defendants, having obtained by the final order of the trial Court all that they claimed, had no right of appeal, but they had the right'of course to reserve exceptions during the progress of the trial and to have those exceptions certified by the trial judge to this Court. It seems that such exceptions were reserved and if the defendants desired to have