2 Md. 245 | Md. | 1852
delivered the opinion of the court.
We have carefully examined the question involved in the motion for a procedendo in this case, and have come to the conclusion, that we not only possess the power to grant said motion, but that the merits of the case, as disclosed by the record, render it proper that we should do so.
It is true no case has been cited where the power has been exercised by the late Court of Appeals in a case like the one Uow before us, and even cases have been referred to where similar applications have been refused by that court. But it by no means follows from these two circumstances, that no such power has been vested in this court. Certain it is, the Court of Appeals have never any where said, that they did not possess the power to grant a procedendo in a case like the present, and in the absence of such a judicial inhibition we are at liberty to treat this as an open question.
The act of Assembly under which we claim the power to grant the present application, is that of 1826, chap. 200, sec. 10. Previous to that act the court was restricted in the exercise of this power by the act of 1790, chap. 42, to cases where judgments were reversed upon bills of exceptions.
The act of 1826 fo low. d, the design of which was to remove all restrictions from the full exercise of the power by the court. The language is broad enough surely .o warrant such a construction. After providing for certain other proceedings in cases of appeals, the law proceeds as follows: “the Court of Appeals shall make such regulations as may be right and proper for hearing and determining the same; and shall, upon the transcript so transmitted, on any appeal or writ of error as aforesaid, and the proceedings thereon, give judgment or award a writ of procedendo for a rehearing of the case as shall appear to be just.”
The act of 1830, chap. 186, which related to the same subject, was but in effect a reenactment, in part, of the act of
In our opinion, the manifest design and meaning of that act was to extend the powers of the court to every case which had merits disclosed by the record, but which could not be elicited as the case was then presented.
It has been urged upon us as a binding precedent, that the former Court of Appeals have refused similar applications. The cases referred to in argument in support of this view, (5 Gill and John., 239, and 6 Gill and John., 268,) are not similar to this, except that they were affirmed on appeal. The court, in each of those cases, had decided that the plaintiffs could not recover upon the allegations set out in the declaration. In the present case we have said, that the record discloses a meritorious case on the part of the plaintiff, and therefore we think, (to use the language of the law itself,)
Procedendo for a rehearing awarded under the act of 1826, chap. 200, sec. 10.