Bragunier v. Penn

• Decision Date: 26 April 1894
• Citation: 29 A. 12,79 Md. 244
• Parties: BRAGUNIER v. PENN.
• Court: Maryland Court of Appeals

29 A. 12

79 Md. 244

BRAGUNIER v. PENN.

Court of Appeals of Maryland

April 26, 1894

Appeal from circuit court, Charles county.

Petition by Daniel J. Bragunier against Joseph H. Penn to contest defendant's election to the office of county commissioner of Charles county. From an order dismissing the petition petitioner appeals. Reversed.

Argued before ROBINSON, C.J., and BRYAN, BRISCOE, McSHERRY, FOWLER ROBERTS, PAGE, and BOYD, JJ.

Danl. R. Magruder, for appellant.

John H Mitchell and L. A. Wilmer, for appellee.

PAGE J.

The appellee has moved to dismiss the appeal in this case, and has assigned as reasons therefor that the record was not printed at the time the case was set for hearing at the January term of this court; that the order dismissing the petition by the lower court was not final, and does not conclude the case; and that no bill of exceptions was signed and sealed by the judge before whom the case was heard. This motion cannot, however, be allowed. The record was printed at the time the case was called for a hearing, and this was a compliance with the twenty-fourth rule of this court. The order appealed from was unquestionably final, inasmuch as it denied the petitioner the means of further prosecuting his suit. It terminated the proceeding, and it is well settled that, when that is the case, an appeal will lie, "and all the errors of the court below in the progress of the cause will be proper subjects for complaint of the party, and for the correction of this court." Hazlehurst v Morris, 28 Md. 71. Nor is it a case where exceptions are required. In Shaeffer v. Gilbert, 73 Md. 73, 20 A 434, this court has said that the provisions of section 9 of article 5 of the Code have never been held to apply "to motions in arrest of judgment and other like proceedings, which are to be heard and determined by the court itself, and not by the court and jury. In such cases an appeal brings up the entire record for review by the appellate court." The petition was filed for the purpose of contesting the election of the appellee to the office of county commissioner of Charles county. It sets out, substantially, that the appellant, a resident, citizen, and qualified voter of the county, was a candidate for the office of county commissioner at the election of November, 1893, and his competitor for that office was the appellee; that the returns from all the districts of the county, as shown by the certificate on the books of the polls filed in the clerk's office, as well as the certificate of the returns filed in that office, and "also the duplicate of said certificate forwarded to the governor," show that the appellant received at said election twelve hundred and seventy-four votes for the office, and the appellee "not more than twelve hundred and sixty-four votes;" that, notwithstanding, the governor "erroneously, and without warrant or authority of law," has issued a commission to the appellee; that other errors and inaccuracies and illegal...