Gross v. Wood

Decision Date31 January 1911
Citation83 A. 337,117 Md. 362
PartiesGROSS v. WOOD.
CourtMaryland Court of Appeals

Appeal from Superior Court of Baltimore City; James P. Gorter Judge.

Action by Peter Bryson Wood, an infant, etc., against George H Gross and another. From an order granting a new trial as to both defendants, plaintiff and defendant Gross appeal. Reversed as to Gross and affirmed on plaintiff's appeal.

Argued before BOYD, C.J., and BRISCOE, PEARCE, BURKE, and THOMAS JJ.

William S. Thomas and Henry W. Williams, for appellant Wood. William L. Marbury, for appellant Gross. Lawrence J. McCormick and Edwin W. Wells, for appellee.

THOMAS J.

Peter Bryson Wood, infant, by his next friend, brought suit in the court of common pleas of Baltimore city against Cæsar H. Rosenheim and George H. Gross for injuries alleged to have been caused by the negligent and careless manner in which the defendants, their servants, and agents, operated automobiles on a public highway of Baltimore city. The case was removed to the superior court of Baltimore city, and the trial in that court resulted in a verdict in favor of the plaintiff against Rosenheim for $3,000, and a verdict in favor of the defendant George H. Gross. The verdict was rendered on the 3d of November, 1910, and on the next day a motion for a new trial was filed in behalf of Rosenheim. On the 7th of November, 1910, judgment on the verdict was entered in favor of Gross for costs. On the motion of Rosenheim the court on the 26th of November, 1910, extended the time for filing bill of exceptions to 30 days from the date of "the final determination of the defendant's motion for a new trial." This motion was overruled on the 14th of December, 1910, and on the same day the time for filing the bill of exceptions was further extended for 60 days from that date. On the 24th of December, 1910, an appeal was entered on behalf of Rosenheim, and on the 10th of February, 1911, the time for filing the bill of exceptions was extended for "thirty days from February 14, 1911." The time for filing the bill of exceptions was extended on the 15th of March, 1911, to the 18th of March, and on the latter date was further extended to the 22d day of March, and again, on the last-named date, to the 24th day of March, 1911, on which day Rosenheim filed a motion for a new trial, and the court passed another order extending the time for filing bill of exceptions to and including the 10th day of April, 1911. On the 22d of April, 1911, the motion for a new trial was, by leave of court, so amended as to include both defendants, whereupon Gross made a motion in open court that the motion for a new trial be not received as to him. This motion of Gross was overruled on the 13th of July, 1911, and on that date the court below granted a new trial against both defendants. The appeal in No. 74 is by George H. Gross, and the appeal in No. 75 is by the plaintiff from that order.

It is contended on behalf of the appellant, Gross, that, before the judgment in his favor could be legally stricken out, there should have been a motion asking for that relief, and that, even assuming that the effect of granting a motion for a new trial against him was to strike out the judgment in his favor, an appeal lies from that order, and that Rosenheim has shown no legal ground entitling him to have the judgment in favor of this appellant vacated.

The appellant in No. 75 (83 A. 341), who was the plaintiff below, insists that Rosenheim lost his right to have the bill of exceptions signed because of his failure to have the time for signing same properly extended, and that, moreover, he failed to show that he lost the benefit of his appeal because he was unable to get the bill of exceptions signed by the judge who sat in the case. On the other hand, Rosenheim contends, first, that the appeals should be dismissed because there is no appeal from an order granting a new trial, and because the evidence taken at the hearing of such a motion cannot be presented to this court by a bill of exceptions; second, that he lost his appeal by reason of the inability of the presiding judge to sign the bill of exceptions, and that he was therefore entitled to a new trial; and, third, that the rights of Gross might have been affected by the appeal entered in the case, and, as he lost his appeal without any fault on his part, a new trial was properly granted against both defendants, Counsel for Gross rely on the case of Bailey v. Costello, 94 Wis. 93, 68 N.W. 664, where the motion for a new trial was filed after a judgment had been entered and was denied by the court below, and on appeal the court said: "It was not erroneous to deny the motion for a new trial. It was not made until after judgment, and could not then be entertained unless joined with a motion to vacate the judgment."

Undoubtedly the proper practice in such cases is to file a motion to strike out the judgment and for a new trial, and that is what was done in the case of Preston v. McCann, 77 Md. 30, 25 A. 687. But we think it equally clear that the effect of granting a new trial is to vacate the judgment and to set aside the verdict. In the case of Evans v. Humphreys, 9 App. D. C. 396, where the lower court found that it could not settle a bill of exceptions, and therefore ordered that the verdict be set aside and that a new trial be granted, the appellate court said: "It is true that the order of court does not in express terms vacate the previous judgment. It only vacates the verdict and orders a new trial. Undoubtedly it would have been more regular, and the record would have been more complete, if the order had specified that the judgment as well as the verdict should be vacated; but that the effect of granting a new trial would be to set aside both the verdict and the judgment, without any specific mention of either, is the doctrine of sound reason. At common law, upon trial of issues by jury, a judgment rendered can only be based upon the verdict of a jury; and ordinarily a judgment without such verdict cannot be supported. When, therefore, a verdict has been set aside, a judgment based upon it must necessarily fall." And it is said in 16 Ency. of Law, 674: "An order granting a new trial as a general rule vacates a former judgment without any special order to set it aside, and sweeps away the verdict, and leaves the case as though no trial had been had." In the case of Waters v. Waters, 28 Md. 11, Chief Judge Bartol, referring to the granting of a motion for a new trial, said: "The verdict having been set aside and a new trial ordered, the case stood as if no trial had taken place, and no verdict had been rendered."

While ordinarily there is no appeal from the granting of a new trial, where the motion is filed after the expiration of the term at which a judgment in the case was rendered, an appeal lies from an order granting the motion because the effect of the order is to vacate the judgment. In the case of Craig v. Wroth, 47 Md. 281, Judge Miller says: "The appellee's counsel has moved to dismiss the appeal upon the ground that the setting aside of the judgment was a matter of discretion in the court, and therefore not the subject of an appeal. If the judgment had been stricken out during the term at which it was rendered, this position would be sound. Rutherford v. Pope, 15 Md. 579. But, where a court takes such action after a lapse of the term, an appeal lies. This has been frequently decided, and we need refer only to Graff v. Merchants' & Miners' Trans. Co., 18 Md. 364, where, as in this case, there was an order striking out a judgment of condemnation on an attachment, after the lapse of the term, and upon full consideration it was held the appeal would lie." This rule has been so firmly settled in this state it is not necessary to cite other cases. The judgment in favor of Gross was rendered November 7th, and the judgment against Rosenheim was entered on December 14, 1910, and the motion for a new trial was not filed until the 24th of March following. Under chapter 184, Acts 1886 (P. L. L. 1888, art. 4, § 171), in Baltimore city an order passed after the expiration of 30 days from the entry of a judgment has the same effect as if passed after the term, unless the motion was filed within the 80 days. Preston v. McCann, supra.

The record in this case fails to show any ground whatever for the granting of a new trial against the defendant Gross. No appeal had been taken by the plaintiff from the judgment in Gross' favor, and Gross could not have been affected in any way by the appeal taken from the judgment against Rosenheim. Nor could Rosenheim have been benefited by a reversal of the judgment in favor of Gross. They were sued as joint tort-feasors, and in such cases, if there is no evidence sufficient to entitle the plaintiff to recover against one of the defendants, it is the usual practice in this state for the court to instruct the jury accordingly. M. & M. Trans. Co. v. Eichberg, 109 Md....

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