O'Hern v. Browning

• Decision Date: 13 January 1871
• Citation: 33 Md. 471
• Parties: SARAH R. O'HERN v. JOHN H. BROWNING, Cornelius S. Johnson, and Others.
• Court: Maryland Court of Appeals

33 Md. 471

SARAH R. O'HERN v. JOHN H. BROWNING, Cornelius S. Johnson, and Others.

Court of Appeals of Maryland

Jan. 13, 1871

Appeal from the Circuit Court for Allegany County, in Equity.

This was an appeal from an order passed on the 6th of August 1869, striking out the appellant's appeal from a decree passed on the 19th of August, 1868, rejecting her claims of over $25,000; and also from an order passed on the 28th of December, 1869, refusing to restore said appeal.

The appeal was stricken out by the Circuit Court at the instance of the appellees, complainants below, upon the alleged ground of the neglect of the appellant to have a transcript of the proceedings in the cause transmitted to the Court of Appeals within the time required by law.

The appeal from the decree of the 19th of August, 1868, was entered on the 5th of October, 1868, the record of the proceedings in the case, to be transmitted to the Court of Appeals, was duly copied about the 13th of July, 1869, but the costs for preparing the same were not entered upon the record until the 24th of August following, on which day the record was duly certified by the clerk under the seal of the court.A motion was made to dismiss the appeal.

The cause was argued before BARTOL, C.J., STEWART, BRENT, MILLER and ROBINSON, JJ.

William Walsh, for the appellant.

The record of a case to be transmitted to the Court of Appeals is not completed until it is certified under the seal of the court, and the costs taxed up, and the work all done and the amount the appellant is to pay ascertained by actual taxation of costs.The suitor is not obliged to pay the clerk beforehand, or to pay by guess at the amount, at the risk of having his appeal dismissed.

The Act of 1864, ch. 322, is a penal Act, made for the benefit of clerks, and the court will require them to come fully within its provisions before it will inflict a forfeiture of the appeal on the suitor.The record must be made out by the clerk within the nine months, or it is not made out as required by law.And in order to make out the record as required by law, it must not only be transcribed within the nine months, but must be under the seal of the court and transmitted within the nine months.

The order striking out the appeal, and the order refusing to restore it or to allow testimony to be taken to bring the case truly before the court, are clearly final; they deprive the appellant of all further remedy and close the case forever, and finally destroy all the rights she claimed in the case."No appeal can be prosecuted in this court until a decision has been had in the court below, which is so far final as to settle and conclude the rights of the party involved in the action, or denying to the party the means of further prosecuting or defending the suit."Boteler v. State,7 G. & J. 112, 113.

The order striking out Sarah R. O'Hern's appeal concluded her rights and prevented her prosecuting the case further.The second order, refusing to vacate the first for alleged fraud and surprise, and refusing to let her take testimony to controvert the ex-parte statements on which the first order was passed, "denied her the means of further prosecuting or defending the suit;" these orders have concluded her rights and denied her the opportunity of making proof or argument in their support.

An order settling any disputed right or interest, is final, and an appeal lies from it.Ches.Bank v McClellan, 1 Md. Ch. 328;Ware v. Richardson,3 Md. 505;Ringgold's Case,1 Bland, 5.

An appeal lies from a decree dismissing a petition to vacate an enrolled decree, or dismissing a bill of review or refusing to strike out a judgment.Oliver v. Palmer,11 G. & J. 137;Berrett v. Oliver,7 G. & J. 191;Hall v. Holmes,30 Md. 558;Montgomery v. Murphy,19 Md. 577.

George A. Thurston, for the appellees.

The order of the Circuit Court striking out the appeal from the decree of the 19th of August, 1868, was final and conclusive, and no appeal will lie therefrom:

1st.Because the Act of 1864, ch. 322, expressly confers exclusive and general jurisdiction on the Circuit Court for Allegany County in Equity.

2nd.Because the law conferring the power and jurisdiction on the court from which an appeal is taken, to dismiss the same, in case the appellant or plaintiff in error shall have neglected or omitted to pay for such record, or by any other neglect or omission on the part of such appellant or plaintiff, the said record shall not be sent to the Court of Appeals within nine months after the appeal has been entered, or writ of error produced, etc., confers a new, original and special jurisdiction, not before enjoyed or exercised by such court and does not provide for any appeal from its decisions thereupon.W.& S. R. R. Co. v. Condon, 8 G. & J. 448;Carter v. Dennison,7 Gill, 170, 171;Lammott v. Maulsby,8 Md. 7;Balto. & Havre de GraceTurn. Co....