Wegefarth v. Weissner

• Decision Date: 25 April 1918
• Citation: 106 A. 854,132 Md. 595
• Parties: WEGEFARTH v. WEISSNER et al.
• Court: Maryland Court of Appeals

106 A. 854

132 Md. 595

WEGEFARTH v. WEISSNER et al.

Court of Appeals of Maryland

April 25, 1918

Appeal from Baltimore City Court; Heuisler, Judge.

Action by George C. Wegefarth against George F. Weissner and others. Judgment for defendants, and plaintiff appeals. On motion to dismiss appeal. Motion overruled.

Argued before BOYD, C.J., and BRISCOE, THOMAS, PATTISON STOCKBRIDGE, and CONSTABLE, JJ.

William L. Marbury and Edward M. Hammond, both of Baltimore (Albert S. Gill and William L. Rawls, both of Baltimore, on the brief), for appellant.

Albert C. Ritchie and Charles F. Harley, both of Baltimore (John M Requardt, of Baltimore, on the brief), for appellees.

THOMAS J.

This appeal is by the plaintiff from a judgment of the Baltimore city court in favor of the defendants for costs, and the appellees have filed in this court a motion to dismiss the appeal on the ground that the bills of exceptions were not presented to them or signed by the judge within the time allowed by Acts 1916, c. 625. The act referred to is as follows:

"Section 1. Be it enacted by the General Assembly of Maryland, that section 173 of the Acts of 1886, chapter 184 codified in the revised charter of Baltimore city as section 316, be and the same is hereby repealed and re-enacted, with amendments, so as to read as follows:

Bills of exception may be signed in any cause pending in any of said courts, at any time within the period that the parties, or any of them, shall have the right to file an appeal from the rendition of the verdict by the jury or the findings of the court upon the issue of fact in said cause and upon filing the order for such an appeal, the time for signing said bills of exceptions shall thereby be further extended until ten days before the period within which it is required that the record shall be transmitted to the Court of Appeals; provided that the party appealing, or his counsel, shall submit the bills of exceptions to the appellee, or his counsel, not less than thirty days prior to the time that the record must be filed in the Court of Appeals, for the purpose of amendments or additions to the said bills of exceptions, and the appellee, or his counsel, within fifteen days after said bills of exceptions shall have been submitted to him, shall return said bills of exceptions to the appellant, or his counsel, with such amendments or additions as he may desire. And upon his failure to return said bills of exceptions within said time, the bills of exceptions shall be signed by the court, as originally prepared by the appellant, or his counsel. If the said appellee, or his counsel, shall return the said bills of exceptions to the appellant, or his counsel, with his amendments or additions, as hereinabove provided, the said bills of exceptions with such amendments or additions shall forthwith be presented to the judge before whom the said case was tried, who shall settle the same within five days thereafter."

According to the terms of this act, the bills of exceptions may be signed at any time during the period within which the parties have a right to appeal from the "rendition of the verdict of the jury or the findings of the court upon the issue of fact in said cause," and upon the filing of an order for an appeal, the time for signing the bills of exceptions is further extended until 10 days before the expiration of the period within which the record is required to be transmitted to the Court of Appeals, provided the appellant submits the bills of exceptions to the appellee, or his counsel, for such amendments or additions as he may desire, not less than 30 days before the expiration of the time within which the record must be transmitted to the Court of Appeals, and the appellee, or his counsel, shall within 15 days from the time he receives them return the bills of exceptions, with the amendments and additions he desires, to the appellant, or his counsel. The act then provides that upon the failure of the appellee to return the bills of exceptions, etc., within the time mentioned, they "shall be signed by the court, as originally prepared by the appellant, or his counsel," and that, if the bills of exceptions, with the additions and amendments desired by the appellee, shall be returned to the appellant as therein provided, they shall be forthwith presented to the judge, "who shall settle the same within five days thereafter."

The record shows that the verdict in the case in favor of the defendants was rendered under the instructions of the court on the 28th of June, 1917, and that the final judgment was entered on the 2d of July, 1917. On the 20th of July the court extended the time for signing the bills of exceptions until the 1st of September, 1917, and by subsequent orders, each one of which was passed by the court before the expiration of the time allowed in the last previous order, the time was further extended "until and including" the 15th of November, 1917. The order for the appeal was filed on the 16th of August, but the bills of exceptions were not submitted to the appellees until the 1st of November, 1917, and on that day counsel for the appellees notified counsel for the appellant that the bills of exceptions had been submitted to them too late, and that, without waiving the provisions of the act, they would examine same and return them with such amendments as they desired "as expeditiously as possible within the time allowed by law." The bills of exceptions, with a long list of the additions and amendments desired by the appellees, were returned to the appellant on the 12th of November, and on the 15th of November, 1917, they were signed by Judge Heuisler, who certified that he did so "over the objections of the defendants that the said bills of exceptions were submitted too late to the appellees or their counsel, and too late to the court," and that no objections were made to their contents.

The appellees insist that the provisions of the act "as to time" are mandatory, while the appellant contends that the act does not deprive the trial court of the power to extend the time for signing bills of exceptions, that it does not apply to appeals from judgments, and that the appellees, by accepting, reviewing, and suggesting amendments and additions to the bills of exceptions, waived their right to object that they were not given the exact time allowed by the act.

That part of the act which provides that the bills of exceptions may be signed at any time within the period that the parties have the right to file an appeal "from the rendition of the verdict by the jury or the findings of the court upon the issue of fact in said cause," when applied to ordinary suits at law, must be construed to mean that the bills of exceptions may be signed within the period an appeal can be taken from the judgment. The act was obviously intended to cover all cases in which bills of exceptions are required, while the language employed would suggest that the framer of the act had in mind cases, such as the trial of issues from the orphans' court or courts of equity, in which no judgment is entered in the court of law, and the appeal is taken, on exceptions, from a ruling or "determination" of the court. In ordinary suits at law there can be no appeal from the verdict (New & Sons v. Taylor, 82 Md. 40, 33 A. 435; Mass. Bond Co. v. Casualty Ins. Co., 129 Md. 192, 98 A. 542), and the right to appeal does not arise until a final judgment has been entered (Hayman v. Lambden, 97 Md. 33, 54 A. 962). In cases where the appeal is from the judgment of the court, this provision of the act must be held to authorize the signing of the bills of exceptions at any time within the period an appeal may be entered from the judgment, and in cases where no judgment is entered in the court of law, the bills of exceptions may be signed within the time the appeal may be taken from a ruling or determination of the court. Code, art. 5, §§ 5 and 6; Hoppe v. Byers, 60 Md. 381.

The order for the appeal having been filed on the 16th of August the time for signing the bills of exceptions was thereby extended to 10 days before the expiration of the 3 months within which the record should have been sent to the Court of Appeals (Code, art. 5, § 6), and the act required the appellant to submit the bills of exceptions to the appellees not less than 30 days before the expiration of said 3 months. The bills of exceptions were not presented to the appellees until the 1st of November, 1917, and were not signed by the court until the...