George's Creek Coal & Iron Co. v. New Central Coal Co.

• Decision Date: 23 June 1874
• Citation: 40 Md. 425
• Parties: THE GEORGE'S CREEK COAL AND IRON COMPANY v. THE NEW CENTRAL COAL COMPANY.
• Court: Maryland Court of Appeals

40 Md. 425

THE GEORGE'S CREEK COAL AND IRON COMPANY v. THE NEW CENTRAL COAL COMPANY.

Court of Appeals of Maryland

June 23, 1874

APPEAL from the Circuit Court for Allegany County.

The case is fully stated in the opinion of the Court.

The cause was argued before BARTOL, C.J., STEWART, BOWIE, GRASON and MILLER, J.

Julian I. Alexander, for the appellant.

When the first inquisition was set aside, the appellant was out of Court. Co. Litt., 362 a; Co. Litt., 134 b; Carth., 86, 87; Sid., 16; Munnikuyson vs. Dorsett, 2 H. & G., 378; Keirle vs. Shriver, 11 G. & J., 406. Consequently the appellant was not bound to take notice of any motion made in the case, and if the appellee wanted any thing further, some process ought to have been had to bring the appellant into Court. Hence the making of the order of 5th March, 1873, being confessedly passed without notice to the appellant, was a surprise upon the appellant, was irregularly passed, and ought to be set aside. The charter of the appellee, incorporating the provisions of the charter of the Baltimore and Ohio Railroad Company, provides, that if an inquisition is set aside, the Court may direct a new inquisition to be taken. The Court setting the first inquisition aside did not order a new inquisition. If the Court attempted to do so afterwards, can it be said, that we ought not to have had an opportunity to show cause against it? The award of the inquisition, being a judgment of the Court by which we are bound, we ought to have had an opportunity of resisting it. Com. Dig. Process, ( A. 1); Mears vs. Remare, 33 Md., 246; Capel vs. Child, 2 Cr. & J., 558; Bonaker vs. Evans, 16 Q. B., 162, (71 Eng. C. L.); Wright vs. Wright, 2 Md., 429; McKim vs. Mason, 3 Md. Ch Dec., 188; Belt vs. Blackburn, 28 Md., 243; Sisk vs. Garey, 27 Md., 419; Graff's Case, 18 Md., 364; Reg. vs Archbishop of Canterbury, 1 E. & E., 545; Willis vs. Childe, 13 Beav., 117; Swaile vs. Leaver, 1 Barnes, 217; Braly vs. Baldock, 1 Barnes, 222; Smithson vs Boughton, 2 Barnes, 204.

But here there is a motion for a new inquisition in April Term 1872. The appellee files a second motion 27th February, 1873. As is apparent from the order of amendment, the first motion had not been regularly continued, indeed nothing had been done with it. Now it was either discontinued, or abated, or not. If it was, then the motion of February, 1873, was the effective one on which the judgment was to be passed. If it was not, then the second motion was irregular, and being the one on which the judgment was based, the judgment was irregular. A man is not entitled to two motions at one time. Bunting vs. Teasdale, 1 Barnes, 156; Wickens vs. Cox, 6 Dowl., 693; see 32 Md., 150.

What became of the motion of April Term, 1872? It must in any event have been abandoned by the new motion or petition. The cases all show that unless continued regularly the motion must abate, and it must be continued from term to term. 7 Bac. Abr., 683; Truett vs. Legg, 32 Md., 147; Hazlehurst vs. Morris, 28 Md., 67; Munnikuyson vs. Dorsett, 2 H. & G., 374; Evans' Prac., 304; Kent vs. McElderry, 9 Gill, 493; Hall vs. Sewell, 9 Gill, 154.

The Court admitted this and ex officio amended the record by entering the continuances. But what was the effect of the rule as to continuance upon the power of the Court? In Com. Dig. Pleader, V. 1, a defendant on ca. sa. was discharged on written agreement. A year after a new ca. sa. issues without continuance on the roll, it shall be set aside. See Dunbar vs. Conway, 11 G. & J., 92; State vs. Jones, 8 Md., 88; Moreland vs. Bowling, 3 Gill, 500; Newcomer vs. Keedy, 9 Gill, 263; Frazier vs. Griffie, 8 Md., 50.

But had the Court any authority to amend the record ex officio after the lapse of several terms? No motion was made by the appellee for any amendment, but the Court undertakes to do it ex officio. The Court has no such authority. It cannot be doubted that the entry of continuances is an amendment of the record. It is equally clear that the omission of the entries was not a clerical misprision. 1st, because if the setting aside of the first inquisition put the appellant out of Court, the continuances ought not to have been entered by the Clerk, and the entry of them now is against the truth of the fact; and 2nd, the entry of continuances or their non-entry is not a clerical act which takes place of course without an order from the Court or the parties, else there would never be any occasion for ordering the continuances to be made or brought up. The continuance is always given prece partium or prece partis who is entitled to ask for it.

Has then the Court ex officio power thus to alter records after the term? At common law it certainly has not. Harrington's Case, Yelv., 97, Noy, 120; Peplow vs. Rowley, Cro. Jac., 357. What the Court therefore cannot ex officio do in the first instance, it cannot do in amendment of the record. And the same thing is shewn by the Act of 1785, ch. 80, sec. 11, which requires that upon the reference of a cause, it shall be continued: here the omission to enter them is a clerical error. So the Court on striking out a judgment under the Act of 1787, ch. 9, sec. 6, is bound to order regular continuances to be entered on the docket, and if it fail to do so an appeal will lie. Munnikuyson vs. Dorsett, 2 H. & G., 374. But if this were a mere matter of clerical misprision, could it be the ground of an appeal? So far from that being the case, the duty of entering the continuances is an essential condition to the exercise of the power of the Court to strike out the judgment, for otherwise the action would be discontinued.

In England, it is thoroughly understood, that the Court has no such power of amendment ex officio. The 36th section of the Common Law Procedure Act of 1860, while giving the most extensive powers of amendment, whether the defect be that of the party applying to amend or not, concludes "all such amendments as may be necessary for the purpose of determining in the existing suit, the real question in controversy between the parties, shall be so made, if duly applied for." No law or authority permits the Court to amend a record after the term ex officio, as was done here without an application from either party, without notice to either party that the amendment was to be made, and without giving the appellant who was out of Court, any opportunity of showing why it ought not to be brought in.

The order of the 5th March, 1873, is wrong, in directing the Clerk to issue a warrant for a new inquisition. The law gives the Court no authority to direct the clerk to issue a warrant, nor does it give the clerk any authority to issue a warrant to the sheriff. The act of directing the sheriff to take a new inquisition must be the act of the Court, not the act of the clerk of the Court, and if an award of a new inquisition be made by the Court, the process of the Court must issue on it. Then, if the process is to be the process of the Court, it is inconceivable how a warrant could be an appropriate process, for a warrant is a precept under the hand and seal of the person issuing it, and, doubtless, the Judges of the Court would never sign and seal a warrant or precept, and if they did, it would be merely void. So the clerk can only set the seal of the Court to process of the State, authorized by law to be issued. But this sort of warrant is utterly unknown to the law and the practice, and is only another of those novelties which appear in this case. The Court did, indeed, amend the warrant, by directing it to be properly tested and made as near a writ in that respect as possible, but then the effect of the amendment was to make the process issued different from that ordered. The order ought to have been amended, but the term had passed.

The warrant is wrong--it merely orders the sheriff to summon the jury to meet on the land and value it. It does not direct him to take an inquisition; it does not direct him in what manner he is to take it; it does not direct him to return it. An inquisition is a proceeding well known to the law, and being intended to be recorded and a judgment entered on it, must be directed where it is intended to be done. A precedent may be found in 2 Harr. Ent., 698, and again, Ib. 701, and elsewhere in the book.

In all these the sheriff is directed to make known to the Court, at a certain term, under his seal and the seals of the jurors, the inquisition he makes, and he is directed to return the writ. All these necessary requirements are wanting in this writ, and the writ was not amended in these respects by the Court.

Again, the original document was not tested, and this was ex officio amended by the Court. But the teste now is wrong. It is settled that the teste of a writ is the last day of the preceding term. 2 Harr. Ent., 612. The writ was issued in January term, 1873, of the Circuit Court for Allegany County; consequently, it ought to have been tested on the last day of the preceding October term, 1873, of that Court, instead of which, it is tested on the 1st day of the January term, in which it is issued.

The Court conceded that the writ was irregular in the form it first issued, but without any prayer therefor by the parties, amended it ex officio. The Court had no such authority of its own motion to make the amendment. Eakle vs. Smith, 24 Md., 360; Kenworthy vs. Pepiat, 4 B. & A., 288. But the Court had no authority to make the amendment at all.

If the writ was amendable at all, it was amendable only on the ground that the error was a mistake of the clerk, i e., a clerical misprision. Trail vs. Snouffer, 6 Md., 308. But here the mistake was not that of the clerk. He was told to issue his warrant, not to issue a writ. If there was any mistake, it was the mistake...