63 Md. 514 | Md. | 1885
delivered the opinion of the Court.
This appeal is from the refusal of the Circuit Court for Garrett County to strike out the judgment rendered therein. Upon the 15th of May, 1884, being the last day of the actual sifting of the Circuit Court for Garrett County, at its May Term, a verdict was rendered by a jury, in favor of the appellees, in that Court against the appellant. A motion in arrest of judgment was made and filed on that day, and at the same time a written agreement of counsel for both plaintiffs and defendant was filed that the Judge of the Court “ may hear and decide the motion in arrest of judgment in the above cause, at any place in his circuit, and make an order or decision therein at any time.” Upon the next day at Cumberland, in Allegany County, the motion was heard, and the day following, being the 17th of May, the Judge rendered his decision, and sent a written order to the clerk of the Circuit Court for Garrett County, overruling the motion in arrest and directing judgment to be entered.
At the September Term, 1884, of the Court, a motion to strike out the judgment, entered in pursuance of the order, was filed by the appellant, which was overruled, and this appeal was taken.
It is contended, that the judgment was improvidently ordered, and entered, because the Court was not actually in session, and this judgment could only be entered in open Court.
A fair construction of the agreement of counsel respecting the matter, clearly, we think, contemplated the final adjudication, of the question presented, by the Court in recess; and if the ordinary course of entering a judgment nisi, had been pursued after verdict rendered, there could have been no possible controversy; for, in such case, the cause shown against the judgment by the motion in arrest having been adjudged insufficient, and the motion accordingly overruled, and the four days having elapsed, the
If section 45 of Article 29, as it now stands, does not give the Court this power, the agreement of counsel could not confer the jurisdiction. An agreement may waive a right, hut cannot confer jurisdiction on a Court; so that the agreement cannot affect the question to be. decided.
Looking to the object which the Legislature must have had in view in the passage of section 45, Art. 29, we have no difficulty in construing it as justifying the order. It is a reasonable construction, beneficial to suitors, and has been often acted on by the Judges in the State. Under it Courts have frequently taken such motions, and even cases submitted to the Court without the intervention of a jury, sub curia, and, after examination, have disposed of them by written order to the clerk as to the entry to be made. Of course, in cases of submission without the intervention of a jury, if the finding is to be against the plaintiff, the Court would not decide the case in recess, unless by the terms of the submission there was a waiver of the right to be called in order that plaintiff might suffer a non pros, at the last moment. In the case of Ecker vs. First National Bank of
We see nothing in the cases cited by the appellant’s counsel which prevents the adoption of this construction of -the statute; With the written order before the clerk to be accurately pursued, and to guide him, there is less danger of erroneous entry than when taken from the Court verbally as done in open Court. The statute uses the term “ orders ” without qualification. It does not restrict to the passage of orders nisi, or conditional orders. An order is a direction of the Court which is binding. All judgments presume an order of Court for their entry, and all judgments are enforced as the judgments of the Court; yet all judgments are not entered by the Court’s immediate direction, or in its presence. By section 47 of Article 18 of the Code, in the absence of the Judge at any regular adjourned session of the Court, the clerk may, with the assent of counsel, enter judgment ££on the appearance, trial or reference dockets.” If this may be done, and the judgments so entered may, with propriety, be enforced as judgments of the Court, and as if entered ££ under the Court’s eye,” certainly there can be no impropriety in sustaining a judgment entered in obedience to the written order of the Judge and strictly
It has been argued that because section six of Article 29 of the Code gives power to the Judges to order judgment by confession to be entered in recess, the power to enter any other kind of judgment is, by necessary implication negatived; and that section 45 of same Article, must yield to the implication derived from this section. We do not think this a sound view. The sections are to be construed together as part of the same Article. They provide for different things. Section six provides a method by which a case not on the docket when the Court adjourned, may be put on the docket and judgment entered therein as if the Court was in session. Section 45 provides for some direction and order in a case already pending upon the docket. They are in no conflict. The first is derived from the Act of 1801, chapter 74, as modified by the Act of 1858, chapter 363. Section 45 is derived from the Act of 1852, chapter 16, as now amended by the Act of 1884, chapter 27, and was intended still further to enlarge the powers of the Circuit Courts and Judges in recess. This last enactment does not affect the first in the slightest degree ; and the first enacted cannot be held as restrict
Judgment affirmed.