Kendrick & Roberts, Inc. v. Warren Bros. Co.

Decision Date10 February 1909
Citation72 A. 465,110 Md. 76
PartiesKENDRICK & ROBERTS, Inc., v. WARREN BROS. CO.
CourtMaryland Court of Appeals

Assumpsit by Warren Bros. Company against Kendrick & Roberts Incorporated. Judgment for plaintiff, and defendant appeals and plaintiff moves to dismiss the appeal. Motion overruled. Judgment affirmed.

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

Charles F. Harley, for plaintiff.

Thomas G. Hayes, for defendant.

BRISCOE J.

The motion to dismiss this appeal cannot prevail because the appeal is from a final judgment entered in the case on the 13th of March, 1908. By section 2, of article 5, Code Pub. Gen. Laws 1904, it is distinctly provided that from any judgment or determination of any court of law in any civil suit or action, or in any prosecution for the recovery of any penalty, fine, or damages, any party may appeal to the Court of Appeals. According to the docket entries set out in the record, on the 11th of March, 1908, a judgment in open court in favor of the plaintiff was entered on demurrer to rejoinder to replication to fourth plea, and on demurrer to replication to fifth plea. On the 13th of March, 1908, after the trial, a judgment on verdict absolute was entered in favor of the plaintiff for $829.88, and on the 8th of April 1908, an appeal was directed to be entered by the attorney for the defendant. The appeal was from the final judgment entered on the 13th of March, 1908, and this appeal brings up for review the rulings of the court below on the demurrers. Lawson v. Snyder, 1 Md. 77; Tucker v. State, 11 Md. 329. In Lee v. Rutledge, 51 Md. 318, this court said: "The action of the court upon the demurrer has been made the ground of the first bill of exceptions. This was an oversight, as it is hardly necessary to say that questions of law, arising upon the pleadings and decided upon demurrer, are ipso facto apparent upon the face of the record, and not properly the subjects of bills of exceptions." In State v. Mercer, 101 Md. 537, 61 A. 220, it is said: "Under article 5, § 80, of the Code as construed in Avirett's Case, 76 Md. 515, 25 A. 676, 987, and Floto's Case, 81 Md. 602, 32 A. 315, the whole record including the demurrers is brought up by the appeal."

The grounds for the motion to dismiss are stated by the appellee in his brief to be, "because there is no bill of exceptions in this appeal, and no petition for removal of the record as upon...

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