Maryland, D. & V. Ry. Co. v. Johnson

• Decision Date: 13 December 1916
• Docket Number: 15.
• Citation: 99 A. 600,129 Md. 412
• Parties: MARYLAND, D. & V. RY. CO. v. JOHNSON.
• Court: Maryland Court of Appeals

99 A. 600

129 Md. 412

MARYLAND, D. & V. RY. CO. v. JOHNSON.

No. 15.

Court of Appeals of Maryland

December 13, 1916

Appeal from Baltimore City Court; Henry Duffy, Judge.

"To be officially reported."

Action by Robert Johnson against the Maryland, Delaware & Virginia Railroad Company.Judgment for plaintiff, and defendant appeals.Motion to dismiss appeal granted.

Argued before BRISCOE, THOMAS, PATTISON, URNER, STOCKBRIDGE, and CONSTABLE, JJ.

Ralph Robinson, of Baltimore, for appellant.

Eugene J. Cronin and James J. Lindsay, both of Baltimore, for appellee.

PATTISON J.

There is in this case a motion to dismiss the appeal.The docket entries as disclosed by the record when it first reached this court, June 14, 1916, were as follows:

"11 April, 1916.Verdict in favor of the plaintiff for sum of $500.

"11 April, 1916.Judgment on verdict 'nisi.'

"12 April, 1916.Motion by the defendant for a new trial.

"Defendants' order for appeal to the Court of Appeals of Maryland filed 27 day of April, 1916.

"2nd May, 1916.Motion by the defendant for a new trial overruled.

"2nd May, 1916.Judgment on verdict absolute in favor of the plaintiff for the sum of $500, with interest from the 11th day of April, 1916, and costs."

On September 25, 1916, the motion to dismiss the appeal was filed, the ground of the motion being that the appeal was taken while the motion for a new trial was still pending and before any final judgment was entered in the case.

The right of appeal to this court is conferred by statute(Code Pub. Gen. Laws 1904, art. 5, § 2), which provides that:

"From any judgment or determination of any court of law in any civil suit or action, *** any party may appeal to the Court of Appeals."

The docket entries as stated above show that the appeal was taken on the 27th of April, five days before the judgment was entered, and that at the time it was taken there was no judgment or determination of the court below from which an appeal could have been taken to this court.If this is a correct statement of the facts, the appeal was prematurely taken, and the motion to dismiss the appeal should prevail.Hayman v. Lambden,97 Md. 33, 54 A. 962;Peoples v. Ault,117 Md. 631, 84 A. 60;Ely v. Springfield State HospitalNo. 41, of the January, 1916, docket of this court(no opinion filed).

It is however, contended by the appellant that such entries do not conform to the facts of the case as to the time when the motion for a new trial was overruled and judgment entered and to correct such alleged errors in the docket entries, the appellant, on the 29th day of September, 1916, filed its petition in the lower court, alleging that its motion for new trial was overruled on April 24th, three days before the appeal was taken, and that thereafter upon the same day the judgment should have been entered.The appellee filed his answer, denying the facts alleged in the petition, and asked that the petition be not received.The court heard the petition and answer, and ordered that the entries of May 2 1916, be stricken out, and that the original docket entries be modified and changed so as to read as follows:

"24th April, 1916.Motion by the defendant for a new trial 'overruled.'

"24th April, 1916.Judgment on verdict absolute, in favor of the plaintiff for the sum of $500.00 the sum found by the jury, with interest from the 11th day of April, 1916, and costs of suit."

But in changing the entries the court made the following statement, which becomes a part of the record under a writ of diminution thereafter granted by this court:

"Upon hearing of petition filed the 29th of September in this proceeding the court finds that on the 11th of April the verdict was rendered in this case; that on the 12th a motion for new trial was made, and was heard on April 15th, that the proposition was then made that the verdict be reduced to $300; that there be a remittance by the plaintiff to that extent, and that the defendant abandon his appeal and pay the judgment; that the plaintiff assented in open court; that the defendant asked time to consult his client, which was allowed; that on the 24th of April, while I was engaged in the trial of criminal cases, in accordance with the understanding theretofore had, counsel for the defendant appeared in court and announced to me that he declined to pay the judgment of $300, and that he would stand on his right to appeal, whereupon I announced that I would overrule the motion.The clerk of the city court(the court in which the case had been tried) was not present in the courtroom at the time, nor was his docket before me, nor was the counsel for the plaintiff present.I did not see the clerk of the city court until the 2d of May, at which time I notified him that the motion for a new trial was overruled, whereupon he made the appropriate entry.Under these circumstances I will now order that the clerk correct the record by entering the motion for a new trial overruled on the 24th day of April, 1916."

The question that we are now to consider is whether the changes so made in the docket entries were rightfully made.If they were not so made, the appeal was, as we have said, prematurely taken, and will have to be dismissed.

In the case of Greff v. Fickey,30 Md. 77,...