45 A. 884 | Md. | 1900
In this case a motion has been submitted upon the part of the appellee to dismiss the appeal based upon two grounds. First, that the transcript of record was not sent up to this Court within three months from the date of the appeal taken. Secondly, that the record here presents no question for the consideration of the Appellate Court. The first ground of the motion is disposed of by the affidavits produced by the appellants and made by the Clerk of the Superior Court, from which this appeal comes, and his deputy which, in the absence of countervailing evidence, are sufficient to exonerate the appellants from fault in the delay of the transcript of record. Bixler v. Sellman,
In considering the second ground of the motion a scrutiny of the record will be requisite. That shows the action in this case to have been begun below by the appellants on the 12th day of August, 1895, when they filed in the Superior Court the titling. Thereafter they filed their narr. consisting of a single count and concluding with a claim of $10,000 damages. To this the defendant (appellee here) pleaded the general issue and issue was joined. Thereafter the plaintiff with leave of the Court amended the declaration by filing what are styled in the record "first and second additional counts." To these last-named counts the defendant demurred. On July 19th, 1898, the entry appears in the record as an order by the Court "that the demurrer to the narr. in this case be and the same is hereby sustained, with leave to plaintiffs to file an amended narr." On the 29th of September, 1898, the plaintiffs filed what appears in the record "eonomine" as an "amended declaration" which in its structure is a complete narr. with *698
the usual formal commencement of suit, containing six counts numbered consecutively from 1 to 6 and concluding with the claim of $6,000 damages. To this declaration the general issue was pleaded, followed by a joinder of issue. Afterwards this plea was withdrawn and a demurrer was entered to the narr., which being overruled, the defendant pleaded the general issue and limitations. These pleas went to issue and upon the issues so joined the case was tried, and the verdict and judgment being in favor of the defendant, the plaintiffs appealed. The record contains only the pleadings to which reference has been made and the entry of the verdict and judgment; and the question presented upon the motion under consideration is, does the appeal here bring up for review, as the plaintiffs claim it does, the ruling of the Court below on the demurrer to the two additional counts added by amendment to the original narr.? This question must be determined adversely to the contention of the appellants. From what is disclosed by the record the plaintiffs must be held to have abandoned their case as made by the original narr. and to have waived their right of appeal, or rather not to have put themselves in a position to appeal from the adverse ruling of the Court upon the demurrer thereto. They did not submit to judgment upon the demurrer nor did they simply amend the original narr. as to the matter which the Court had found obnoxious to the demurrer, nor did they attempt to incorporate new matter into the original pleading by way of adding additional counts thereto; but proceeded upon the leave of the Court which accompanied its ruling, here in question, to file an entirely new declaration complete in itself, presenting throughout a condition of case, as a basis of suit, materially variant from that set out in the original narr. and concluding with a new and different claim of damages. It is apparent that the amended declaration was an entire substitution for the original narr. and that the trial of the case proceeded, and the issues, both of law and fact, were determined entirely with reference to the state of *699
pleading beginning with and following the filing of the "amended declaration." The amendment by way of the "amended declaration" was pleading de novo which withdraws from the case the pleadings for which the new pleading is substituted, according to repeated decisions of this Court. Mitchell v. Williamson, 9 Gill 71; Norwood v. State,
It is true as urged on behalf of the appellants that where there are questions upon demurrer and also issues of fact involved in the trial of a case and the demurrer is determined adversely to the party appealing and the verdict and judgment are also against him on the issues of fact, an appeal from the final judgment brings up for review the ruling on the demurrer. The rule is so stated in 1 Poe's Plead. Prac., sec. 707, and its application is illustrated in the cases of Lawson v. Snyder,
Appeal dismissed.
(Decided February 15th, 1900). *701