Grove v. Swartz

• Decision Date: 21 June 1876
• Parties: WILLIAM K. GROVE and GEORGE GROVE v. HENRY SWARTZ.
• Court: Maryland Court of Appeals

45 Md. 227

WILLIAM K. GROVE and GEORGE GROVE v. HENRY SWARTZ.

Court of Appeals of Maryland

June 21, 1876

APPEAL from the Circuit Court for Carroll County.

This suit was brought by Henry Swartz against William K. Grove and George Grove on their single bill. The case was referred under a rule of Court to Joseph M. Parke, who returned his award on the 11th of June, 1875, finding due to the plaintiff the sum of $263.62. The award was signed but not sealed. Exceptions to the award were filed by the defendants, which were overruled, and on the 22nd of December, 1875, judgment was entered for the plaintiff. On the first of March, 1876 an appeal was prayed.

The cause was submitted to BARTOL, C.J., BOWIE, STEWART, GRASON and ALVEY, J.

James A. C. Bond and William H. Tuck, for the appellants.

Wm. A. McKellip and John E. Smith, for the appellee.

BOWIE J., delivered the opinion of the Court.

There is a motion to dismiss the appeal in this case, on the ground that one of the nominal appellants had died before the prayer for an appeal was filed in the Court below. The appellee has filed an affidavit, showing that George Grove, one of the defendants and nominal appellants, died on or about the 26th of January, 1876, four or five weeks before the appeal was taken, and no counter evidence is adduced by the appellant William K. Grove.

Assuming the facts to be true as stated, it does not clearly appear from the record, that the appeal was taken or intended to be taken in the names of both defendants. The entry on the record is as follows, viz., "1876 March 1st, prayer of defendants attorney, for an appeal to the Court of Appeals filed."

The word "defendants" in the above citation may be taken in the possessive case singular number and applies only to one, meaning the surviving defendant. Each defendant, if living, had the right of appeal, but one being dead, the term "defendants attorney" could only mean William K Grove's attorney. The motion to dismiss must therefore be overruled. Several objections were raised to the award below which were overruled, the award affirmed and judgment rendered thereon in favor of the plaintiff, from which action of the Court the defendant appeals. In this Court an objection is taken which was not made below, viz., that the referee has not returned the award under his hand and seal. Ordinarily, this Court only reviews questions which it appears from the record were raised...