Mayor of Baltimore v. Reynolds

| Md. | Apr 4, 1862

Bartol, J.,-

delivered the opinion of this court.

In this case two appeals were taken, one from the judgment of the 19th day of July 1859, and the other from the judgment’rendered on the 31st day of March 1860. Motions have been’made, by the appellees, to dismiss both these appeals; but a’s the former has been abandoned by the appellants’ counsel in- open court, it is only necessary to dispose of the motion to dismiss the appeal from the judgment rendered on the 31st day of March 1860.

SinCe the decision of the eases of Hannon vs. Robey, 9 Gill, 440, and Dugan vs. Hollins, 11 Md. Rep., 41, the law is Vrell settled, that if the appeal be taken in time, the delay in ih’e transmission of the transcript’ of record to this court, furnishes no ground for dismissing’the appeal, unless it affirmatively appear that such delay is by the default of the appellant.

The other reasons assigned in support of the motion, have been carefully considered, but we are unable to perceive t.heir force. The facts disclosed in the record, and recited at length in the appellees’ motion, show that, at the trial below'1, “ various questions of law arose and were decided by the judge of the Superior court, to whose decisions exceptions were taken by the appellant, at whose instance bills of exceptions were signed and sealed by the said judge,” and have been transmitted to this court. Under these circumstances it cannot be said, “the record does not show any basis for said appeal,” as alleged in the motion.

(Decided April 4th, 1862.)

It is true that the trial at which the exceptions were taken, resulted in a verdict for th’e sum of $3'5’,788.53, and that after-wards on the motion of the defendant below for a new trial, the court passed its order of the 31st day of March 1860, adj udging that the defendant was entitled to a new trial, and that such new trial would be granted, unless the plaintiffs below would forthwith remit on the verdict the sum of $6195.14, which remittitur was made by the plaintiffs below, and a final judgment was entered for the reduced sum, and the appeal before us is from that judgment. The appellees are in error in supposing that this appeal brings before us only the action of the Superior court, subsequent to the verdict. Such action, being within the discretion of that court, cannot be reviewed here. But the judgment finally rendered on the 31st day of March 1860, for the reduced amount,-Was a judgment on the verdict, and an app’eal therefrom brings before us the exceptions taken at the trial, in the same manner as if the motion for a new trial had been unconditionally refused, and the final judgment had been1 rendered on' the verdict for the whole sum found by the jury.

Motion overruled.