Davis v. O'Berry, 51 A. 1107

Davis v. O'Berry

51 A. 1107 | Md. | 1901

In an opinion per curiam, filed January 16th, 1902, it is said: "This case is ruled by the judgment delivered in No. 101 between the same parties (ante p. 708.) The construction placed in that case upon the sections of the registration law there involved is adhered to in this case when precisely the same sections of the same law are concerned. The appeal in that case was dismissed and so must this appeal be also dismissed for *752 the same reason. There was an appeal from certain officers of registration to the Circuit Court for Anne Arundel County. The Court heard the case, and on July the fifth, nineteen hundred and one, decided it. On the same day an appeal was taken to this Court. On September the twentieth, according to the body of the record, or September the twenty-fourth, according to the docket entries — and we do not know which date is right — a paper called "an agreed statement of the case" was filed in the Circuit Court. This agreed statement of the case does not purport to set forth the facts that were elicited in the trial before the Circuit Court, and we are left by it entirely in the dark, both as to the questions decided below and the grounds upon which the decision that was made was based. An appeal in a case like this cannot be brought into this Court in such a way. If there had been an agreed statement of facts filed below before the case was heard there a different situation would have been presented. But we know of no practice which permits a statement of the case to be drawn up by counsel nearly three months after the determination of the case, and which allows that statement to be taken as a sufficient certification of the evidence adduced below, when the statement itself does not even profess to set forth what transpired in the trial Court. Such a method of bringing up a record in a case of this kind is irregular and wholly without precedent. It has been supposed that what was said by this Court in Coulbourn v. Fleming, 78 Md. 215, justified the course here pursued. But that is a palpable misapprehension. The case ofCoulbourn v. Fleming, was an appeal from an order passed on a motion to strike out a judgment. It was a summary proceeding. There was no bills of exceptions but the transcript of the record contained a statement of evidence, which, by written agreement filed in the cause, counsel admitted was given at the hearing of the motion to strike out the judgment, "and, if we understand the agreement" said the Court, "was approved by the Court as correct." In dealing with a case thus presented we said: "In this State, however, according to a long-established practice, it is not obligatory to take a bill of exceptions *753 in summary proceedings before the Court, such as motions to quash attachments, to strike out judgments, and such like matters. * * * When the motion rests on questions of fact, the evidence ought to be certified in such manner as will show the Appellate Court with certainty what proofs were submitted to the Court below. * * * In Dumay v. Sanches Gibson, 71 Md. 512, it was said that the facts may be presented by bills of exceptions, or by agreed statement of facts, or by depositions taken under the authority of the Court, and reduced to form, and authenticated, and filed in the cause." Whilst all this is true and perfectly familiar, it has no bearing on the cause at bar. We know of no instance in which a mere agreement prepared and signed by counsel months after the rendition of the judgment appealed from and which does not on its face profess to narrate the facts elicited below, has ever been regarded as entitled to take the place of the bill of exceptions, or of a case stated, or of a formal agreed statement of facts, submitted to and acted on by the trial Courts.

But there is another equally serious defect. The case was tried below during the April term of the Circuit Court. The agreement was signed and filed during the following July term of the same Court. Had the agreement been couched in the form of a certificate by the trial judge, it could not be considered because not signed during the term in which the judgment appealed from was rendered. This has been expressly ruled in Palmer v.Hughes, 84 Md. 652. That being so, then obviously no agreement intended to take the place of a bill of exceptions, or of a certificate of the trial Judge can be considered on appeal if it has been executed and filed after the lapse of the term during which the case was tried.