Preston v. McCann

• Decision Date: 13 January 1893
• Citation: 25 A. 687,77 Md. 30
• Parties: PRESTON ET AL. v. MCCANN ET AL.
• Court: Maryland Court of Appeals

25 A. 687

77 Md. 30

PRESTON ET AL. v. MCCANN ET AL.

Court of Appeals of Maryland

January 13, 1893

Appeal from Baltimore court of common pleas.

Action by James B. Preston et al. against James J. McCann et al. for debt. Judgment for plaintiffs. Defendants move to strike out judgment. Granted. Plaintiffs appeal. Dismissed.

Argued before ALVEY, C.J., and ROBINSON, BRYAN, and McSHERRY, JJ.

Brown & Brune and Wm. Geo. Weld, for appellants.

C.J. Bonaparte, for appellees.

ALVEY C.J.

It is quite unnecessary to go into a critical examination of all the facts of this case, for it is clear that no appeal lies. There has been a motion made to dismiss the appeal, and that motion must prevail. The appeal is from an order striking out a judgment and reinstating the case for a new trial. It his only necessary to refer to the principal facts which gave rise to the motion to strike out, and upon which that motion was based. The case was tried before the late Judge DUFFY, and the verdict was rendered on the 9th of February, 1892; and it appears that during the trial certain exceptions were reserved by the defendants, to be subsequently written out in form, and signed by the judge. On the same day of the rendition of the verdict, a motion was made by the defendants in arrest of judgment. The exceptions reserved were not prepared and signed within the 30 days mentioned in the statute, (Code Public Local Laws, art. 4, § 170,) but the time for signing such exceptions was extended from time to time, by the judge before whom the case was tried, until the time of his death, which occurred on the 1st of July, 1892. The judge became seri ously ill shortly after the trial, and was not able to attend to business at any time thereafter down to the time of his death; or, as stated in the affidavit of his son, a member of the bar: "My father became too ill to discharge his official duties on the 19th of February last past, and so continued to the day of his death, with the exception that he was able to sit in court one day, and dispose of a case which had been pending at the time when he was first taken ill. He left the city of Baltimore and the state of Maryland, for the benefit of his health, on the 29th day of March last, and remained uninterruptedly until the 29th day of April following. During the whole period of his illness the state of his health was such that he could not have revised bills of exceptions in an important and contested case." And it is shown that the bills of exceptions were of that character in this case. Judge DUFFY was succeeded in the court of common pleas by Judge PHELPS, and on the 25th of June, 1892, the motion in arrest of judgment was overruled by the last-named judge, and a judgment the same day entered upon the verdict. On July 7 1892, six days after the death of Judge DUFFY, the defendants moved to strike out the judgment, and that they be allowed to have a new trial, upon the ground that, by reason of the death of Judge DUFFY, they were unable to have their bills of exceptions settled, signed, and sealed by the judge who tried the case. The motion to strike out the judgment was not acted upon until the 29th of September, 1892, upon which day the judgment was ordered to be stricken out, and that the case should stand for retrial. It is from this order that this appeal is taken.

We assume that the judge below, in striking out the judgment acted upon the authority of the case of State v....