Price v. Thomas

| Md. | Dec 15, 1853

Mason, J.,

delivered the opinion of this court.

We can discover no ground for the dismissal of this appeal. The objection that one only of the two defendants had appealed without summpns and severance, raised upon the first record, has been obviated by the amended record, which shows that both defendants united in the appeal.

Because one only of the defendants filed an appeal bond, ■constitutes no valid objection to the appeal.- , The bond might have been omitted altogether, and still the appeal would have been sustainable. To do that imperfectly or incorrectly, which need not be dofie at all,, will not prejudice a party’s case.

The object of an appeal bond is merely to stay execution.

The bond in this case being filed by only one of the defendants, without summons and severance, did not operate as a stay of execution, and the defendants might have resorted to their execution at any time notwithstanding the bond.

Nor can we discover any valid objection to this appeal, because it was not brought up upon bills of exception. As this is like a case of a motion in arrest of judgment, as we shall presently show', it can be brought up upon appeal in the same way.

As a preliminary question, we will here remark, that the objections made to the exceptions because they were not signed by counsel, nor verified by affidavit, cannot be maintained. Exceptions to an award for defects apparent upon its face need not be verified by the oath of the exceptioner. Nor is it a valid objection that the exceptions were not signed by counsel. They appear to have been filed by the counsel in the cause, which we think was sufficient to impress them with the stamp of genuineness, which is all that is neeessary.

Exception taken to the regularity of an award, is analogous to a motion in arrest of judgment, and therefore does not fall within the operation of the act of 1825, eh. 117. The exceptions in this case bring up for review the regularity of the award, and any defect apparent upon its face, is inquirable into, although not particularly specified in the exceptions.

We discover several defects apparent upon the face of the proceedings of the arbitrators in this case, any one of which is fatal to the award. The only one to which we need refer, is the omission of the arbitrators to return Iheir award under seal. The submission or reference requires, that the award should be returned under the hand and seal of the arbitrators, and the omission to do so is fatal, and renders the whole proceeding void.

We deem it proper to add, as this case will go back upon a procedendo, that we think the deposition of the witness Plummer is properly in evidence in this cause. There was a consideration moving both parties, for the agreement to take this testimony in writing. The defendants got a continuance thereby, and the plaintiffs were to be excused from afterwards producing this witness in court. Now that the defendants have reaped their portion of the fruits of the agreement, it is too late for them to object to the enjoyment by the plaintiffs of the advantages which they had in contemplation when they entered into it. Jf the plaintiffs had insisted upon a trial when the witness was present, as they might have done, they might long ago have terminated this controversy; but as they 'thought proper to relinquish this advantage upon certain conditions, those conditions must be strictly enforced. Othe'r"wise the plaintiffs may lose altogether the benefit of the testimony of this witness; and that too by no fault or misfortune of theirs. These views are based upon the supposition, that the agreement to take Plummer’s testimony in writing, was clearly established.

Judgment reversed and procedendo awarded.