Albert v. State
| Decision Date | 04 January 1887 |
| Citation | 7 A. 697,66 Md. 325 |
| Parties | ALBERT v. STATE, USE OF RYAN. (TWO CASES.) ALBERT v. STATE, USE OF RYAN. (TWO CASES.) |
| Court | Maryland Court of Appeals |
Two appeals in one record from circuit court. Howard county.
Talbott J. Albert and Wm. Pinkney Whyte for appellant.
D G. McIntosh and John J. Donaldson, for appellee.
This was an action brought by a minor for damages sustained by him by the death of his parents, who were drowned at a place called "Tivoli," and where death was caused, as he alleges, by the negligence of the defendant, the owner of the wharf.
Before we determine the law of this case, it will be proper to dispose of one or two technical objections that have been raised against the proceedings.
One of the objections urged is that the suit should have been brought by the next friend of the infant equitable plaintiff. This objection seems to be sufficiently answered by the terms of the statute under which this suit is brought,--at least where the objection comes in the shape of a motion in arrest of judgment. The statute provides, in a case like the present, that the suit shall be brought in the name of the state for the use of the party aggrieved. This suit has been so brought, and certainly after verdict it is too late to urge the objection that the name of a next friend should have been inserted. The only object that could have been obtained by inserting the name of the next friend of the infant was security for the costs to the defendant, if the plaintiff failed in his suit. The next friend would have had no authority to receive the amount of the judgment, and his appearance in a case like this answers no good purpose except to be security for costs. But, while that is undoubtedly so, we must not be understood to decide that it would be improper to insert the name of a prochein ami to the infant in a case like the present. In many instances it would be very desirable to do so. Especially in those cases where the infant was too young to make an affidavit for removal.
Another objection urged is that the infant could not make the suggestion and affidavit for removal. The infant in this case was upwards of 15 years of age, and would be presumed, at that age, to have understanding and discretion sufficient to understand what a removal of his case meant, and to make the oath required. In the light of our present constitution, the right of removal is regarded as a very valuable one. In asking for it, the infant did not waive any rights that he had, but merely asserted and demanded his legal right. What an adult prochein ami could have certainly done for him, an infant who had arrived at 15 years of age could do for himself. It might present a different question if the equitable plaintiff was of such tender years that no presumption could arise of sufficient intelligence to understand the nature of the right claimed, or of an oath.
Another objection is that the affiant did not pursue in his suggestion for removal the exact words of the constitution, in this: that the suggestion was that "he believed that he could not have a fair and impartial trial," while the constitutional provision is that "he cannot have a fair and impartial trial." The difference is altogether immaterial. The party making the suggestion is required to verify it by his affidavit. This affidavit is that the matters in the suggestion contained are true, to the best of his (the affiant's) knowledge and belief. Taking the suggestion in the exact words described by the constitution and the affidavit together, and they mean nothing more than the party swears that to the best of his knowledge and belief he cannot have a fair and impartial trial in the court from which he desires the removal. The suggestion and affidavit in this case mean and assert precisely the same. In this case the word "belief" is inserted twice where once would have been sufficient, and is clearly only surplusage.
Another objection remains to be disposed of. The defendant has filed in the record certain special exceptions, as he terms them, to the court's instruction, and to certain prayers of the plaintiff for want of legally sufficient evidence to support them. As these prayers were rejected by the court, and plaintiff has not appealed, these rejected prayers are not before this court. Nor can we notice these so-called special exceptions as applicable to the court's instructions, because they are not, properly speaking, exceptions at all. The fourth rule of the court of appeals, provides, in the latter part of it, as follows: "Nor shall any question arise in the court of appeals as to the insufficiency of evidence to support any instruction actually granted, unless it appear that such question was distinctly made to and decided by the court below." The only way that a question can be made to appear to this court to have been made to and decided by the court below is by way of exception. By the uniform and continuous practice in this state, a bill of exceptions must be signed and sealed by the court below before we can review it. In general the bill of exceptions itself must plainly show the point decided by the lower court. We are particularly prohibited from examining the legal sufficiency of the evidence to support a granted prayer or instruction by the rule just referred to, unless it distinctly appears that such question was made to and decided by the court below. It can only be made so to appear by a certificate under the hand and seal of the judge who tried the case below.
But in this case there is no exception, properly speaking, to the instruction of the court for want of the legal sufficiency of the evidence to support it. There are papers filed in the case called special exceptions on that point, but they are not signed and sealed by the court, but by the attorneys. From aught that appears in this record, the legal sufficiency of the evidence may never have been brought to the attention of the judge who tried the case. A paper filed in a case by the attorney, unsigned and unsealed by the judge, cannot have the force and effect of an exception, although the parties may call it so. The special exception for want of evidence must be within the bill of exceptions, and not out of it. If these so-called special exceptions that are not certified to as by the lower court have ever been considered by this court. It was always in cases where no objection was urged against them. In the case at bar the objection is distinctly made and urged. The correctness of the law of the court's instruction is open for review upon the exception taken to it by defendant, but not the legal sufficiency of the evidence upon which it was based. The end and object of...
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