Hays v. Philadelphia, W. & B.R. Co.

Decision Date08 June 1904
Citation58 A. 439,99 Md. 413
CourtMaryland Court of Appeals

Appeal from Circuit Court, Harford County; James D. Watters, Judge.

Action by Alexander F. Hays against the Philadelphia, Wilmington & Baltimore Railroad Company. From a judgment for defendant plaintiff appeals. Appeal dismissed.


James J. Archer, for appellant.

Thomas H. Robinson, for appellee.


The appellant in this case brought suit against the appellee in the circuit court for Harford county to recover damages for personal injuries caused by the alleged negligence of the appellee, and, the verdict and judgment being in favor of the appellee, this appeal was taken.

The appellee has moved to dismiss the appeal, on the following grounds: (1) That no appeal was actually taken from the judgment of the lower court; (2) that no written order for appeal was ever filed; (3) that no verbal order for appeal was entered on the docket; (4) that the verbal order for appeal alleged to have been given on the day the judgment was entered on the docket was given to the clerk at a time when the court was not in actual session, and was not entered on the docket until more than two months after the entry of the judgment. With this motion was filed a certificate of the clerk of the court that the September term, 1903, of the court commenced on the second Monday of that month; that the jurors were finally discharged October 16, 1903, and the next session of that court commenced on the second Monday of November, 1903; that the motion for new trial was overruled and the judgment entered October 16, 1903, and that on that date appellant's attorney handed to him the papers in the case, stating that he desired to enter an appeal, and directed him to make out the record and transmit it to the Court of Appeals; that he did make out and transmit the record, but omitted to enter the prayer for appeal until January 27, 1904, when, his attention being called to the omission, he entered the same on the docket as if made October 16, 1903. With the motion to dismiss was also filed an affidavit of appellee's counsel stating that the motion for a new trial was submitted without argument to Judge Watters, then one of the judges of that court, and before whom alone the cause had been tried, on October 16 1903, at his private office, in the Masonic Temple, at Bel Air, the county seat of Harford county; that the motion was then and there overruled, by an order in writing signed by the judge, a copy of which, duly certified, was filed with the affidavit, and that said order was at once taken by the affiant to the clerk, and filed and entered on the docket but that no other order, either written or oral, was given by the court, and the clerk of the court was not present, and the court docket was not before the judge, and court was not in session at the time. On April 12, 1904, a writ of diminution was granted the appellant to enable him to bring up an amendment which had been made to the record, and from this diminution record it appears that the circuit court for Harford county on April 11, 1904, upon the petition of appe11ant's counsel, and the accompanying affidavits, directed the clerk to correct the record in this cause by entering upon his docket therein: "A prayer by the said plaintiff, Alexander F. Hays, for an appeal from the judgment in said cause rendered October 16, 1903, to the Court of Appeals of Maryland, as of said 16th day of October 1903." This order was made by Judge Burke, the term of Judge Watters having in the meantime expired, and was based upon the following evidence: (1) An affidavit of appellant's counsel stating that, when the motion for a new trial was overruled by Judge Watters, the judge then handed him the papers, directing him to hand them to the clerk, and to direct the clerk to enter upon the docket, "The motion for a new trial overruled, judgment for the defendant, and an appeal by the plaintiff," and that he carried out these instructions, and on that day "took an appeal for the plaintiff from the judgment in said cause, in open court, before Judge Watters, after said judge had overruled said motion for a new trial and had given judgment for defendant, and then requested the clerk to make out and transmit the record." (2) An affidavit of Judge Watters confirming in every respect the facts alleged in the foregoing affidavit, so far as relates to his own directions and the taking of the appeal. (3) A certificate of the clerk of the court stating that on October 16, 1903, "the motion for a new trial was overruled and judgment entered on the verdict, and thereupon appellant's attorney on said date handed the papers in the case to the clerk, and stated he desired to enter an appeal, and directed him to make out and transmit the record to the Court of Appeals; that the clerk thereupon, considering an appeal intended, made out and transmitted the record, but omitted to enter on his docket the prayer for an appeal till subsequently, when his attention being called to the fact, he made the entry accordingly." The diminution record shows the following entry: "April 11th 1904. Prayer for appeal by plaintiff in open Court to the Court of Appeals from judgment of Oct. 16th 1903, filed as of Oct. 16th 1903, per order of Court." Subsequently, on April 14, 1903, Judge Watters filed a second affidavit, stating that the September term of that court convened on the second Monday of September, 1903; that the jury was discharged October 7, 1903, after which the September term was adjourned from day to day until the second Monday in November, 1903, when it was finally adjourned, and the November term began; that at a session of said September term held by him on October 16, 1903, the appellant took an appeal in said cause, before him, in open court, to the Court of Appeals, from the judgment rendered by him that day on the verdict, after he had overruled the appellant's motion for a new trial, which he had previously set down for hearing on that day at request of appellee's counsel; and, Judge Burke having directed the clerk to file said additional affidavit, the clerk has certified the same, with said order, at the request of appellant's counsel, as an addition to the diminution record.

The question of practice involved being one of importance as a possible precedent, and the facts being somewhat peculiar, we have set them out fully, that there may be no misapprehension as to the ground and scope of our decision.

In Gaines v. Lamkin, 82 Md. 129, 33 A. 459, where there was no amendment of the record, the question before the court, as stated by the late Chief Justice Robinson, was "whether a mere verbal order for an appeal, not entered of record till after the expiration of two months from the date of the judgment, is an appeal properly taken, within the meaning of the Code"; and the conclusion of the court was that "every safe and sound principle of construction requires us to hold that where a mere verbal order for an appeal is given, not in open court, the entry of the appeal must be made within the time limited by the statute." The italics are those of the opinion quoted. A closely analogous question was considered upon a motion to dismiss an appeal in Livers v. Ardinger, 90 Md. 36, 44 A. 1042 where also there was no amendment of the record. In that case the February term of the circuit court for Washington County met on the 13th of that month, and the regular sitting of the court continued until March 22d, when the petit jurors were discharged for the term. During this period the judgment appealed from was rendered....

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