Johns v. Johns

• Decision Date: 05 May 1863
• Citation: 20 Md. 58
• Parties: MONTGOMERY JOHNS, SURVG. EXC'R OF JOHN JOHNS, ET AL., v. JOHN TOLLY JOHNS.
• Court: Maryland Court of Appeals

20 Md. 58

MONTGOMERY JOHNS, SURVG. EXC'R OF JOHN JOHNS, ET AL., v. JOHN TOLLY JOHNS.

Court of Appeals of Maryland.

May 5, 1863

APPEAL from the Circuit Court for Baltimore City:

This was a motion and petition for a re-hearing filed April 10th 1863, in a cause heretofore decided in this Court, by the affirmance of a decree of the Circuit Court for Baltimore City, (KREBS, J.,) resulting from an equal division of this Court upon the points then in controversy.

The motion was submitted to the Court, BOWIE, C. J., BARTOL GOLDSBOROUGH and COCHRAN, J., without argument. R. Johnson and Wm. Schley, for the motion:

I Nevett Steele and S. H. Tagart, against the motion:

OPINION

BOWIE C. J.

In announcing the decision in Kent vs. Waters, 18 Md. Rep., 53, upon a similar application, this Court expressed its intention to adhere to the rule adopted by the Supreme Court of the United States in the case of Brown vs. Aspden, 14 Howd., 25, viz: " That a re-argument of a case decided by this Court, will not be granted unless a member of the Court who concurred in the judgment desires it, and when, that is the case, it will be ordered without waiting for the application of counsel." Chief Justice Taney in delivering the opinion of the Supreme Court in the case referred to, enters at large into the important and controlling considerations which govern such cases, and in stating the rule of the Court, he states incidently its reason thus: " No reargument will be heard in any case after judgment is entered, unless some member of the Court who concurred in the judgment afterwards doubts the correctness of his opinion and desires a further argument on the subject."

This reason is not embodied in the rule as announced by this Court in Kent vs. Waters, but it is not too much to say, (it is so obviously apparent, that the rule would otherwise seem arbitrary and unmeaning,) that in adopting the rule, this Court also adopted the reason.

The case of Brown vs. Aspden, was like the present, a case in which the judgment of the Court below was affirmed by an equal division of the Supreme Court, there being but eight members present.

Adverting to this feature of the case, the Chief Justice remarks: " It is true that the decree of affirmance in this Court in the case before us, was upon an equal division of the members composing the Court at the time of the argument, eight being present. But the case was fully heard, more than a week being occupied in the arguments of counsel. And when upon conference and a full interchange of opinion, it was found that the Court was divided, the case was held over until the present term, in order that each member of the body might have an ample opportunity of investigating the subject for himself. This has been done. And when the Court re-assembled, it was found that the opinion of each member of the tribunal was unchanged, and the decree was therefore affirmed by a divided Court."

" Further arguments would be a mere wast of time, when opinions have been formed...