Ruppertsberger v. Clark

• Decision Date: 30 March 1880
• Citation: 53 Md. 402
• Parties: GUSTAV RUPPERTSBERGER v. JAMES CLARK & COMPANY.
• Court: Maryland Court of Appeals

53 Md. 402

GUSTAV RUPPERTSBERGER v. JAMES CLARK & COMPANY.

Court of Appeals of Maryland

March 30, 1880

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

The case is stated in the opinion of the court. The rule of court therein mentioned, provides, that "every bill of exceptions taken to the ruling of the court, in the progress of the trial, must, if required by either party, be prepared and settled before the verdict is rendered; and in every case, unless otherwise expressly allowed by the court, the bill of exceptions shall be prepared and submitted to the court during the term at which it shall have been taken.

The cause was submitted to BARTOL, C.J., BRENT, ALVEY, ROBINSON and IRVING, JJ.

C B. Slingluff and R. R. Boarman, for the appellant.

John S. Tyson, for the appellees.

Bartol C.J., delivered the opinion of the court.

The appellees recovered a judgment against the appellant in the Circuit Court for Baltimore County, at the December Term 1877, for $795.61, and costs.

The bill of complaint in this case, was filed by the appellant on the 6th of May, 1878, for the purpose of obtaining a writ of injunction to stay execution upon the judgment, and for general relief. An injunction was issued as prayed, and on the hearing of the case upon bill, answer and proofs, a decree was passed dissolving the injunction, and dismissing the bill with costs. From that decree the present appeal was taken.

The bill alleges, that at the trial of the case at law, in which the judgment was rendered, an exception was taken to some of the evidence offered on the part of the plaintiffs, Clark & Co., by the defendant, and the defendant offered three prayers, two of which were granted, and one overruled; that all of the prayers have been lost, and although your complainant took an appeal from the ruling and decision of the court; from the fact of the loss of the prayers, etc aforesaid, it was impossible for him to have a bill of exceptions prepared within the time required by law. That the complainant's attorneys agreed with the attorney for the appellees to extend the time for having the bill of exceptions signed, until March 15th, 1878, and after the term at which the case was tried had passed. The bill then alleges, that several diligent but unsuccessful searches were made for the prayers, and relates the efforts which were made by the complainant's attorneys to prepare a bill of exceptions, to which the respondents' attorney would agree; and states that the respondents' attorney at length prepared a bill of exceptions, which though not entirely satisfactory to them, was nevertheless agreed to by them, and was by them sent to the respondents' attorney in time for him to mark his assent thereon, and to be sent by him to Judge Watters at Bel-Air, to be signed by him by the 15th of March, 1878, and charges, that the failure to send the same to Bel-Air, was the fault of the respondents' attorney. It is alleged, that the bill of exceptions reached Judge Watters on the 16th of March, 1878; but that the respondents' attorney notified the Judge by letter that he did not consent to its being signed after the 15th. And it is charged in the bill, that the complainant's attorneys have been surprised by the action of the respondents' attorney in this respect, that in an interview with him they certainly understood, from conversations with him, that no advantage would be taken of a failure to have the bill of exceptions signed by the court by March 15th, 1878; his conversation being directed to the fact, that he wanted the case tried at the succeeding April term of the Court...