Johnston v. George

Le Grand, C. J.,

delivered the opinion of this court.

It was agreed in this cause, if the court should be of opinion the appellants were entitled to a writ of dimintion, as asked, that then the record should be considered as amended, so as to make.it appear an appeal had been taken from the rendition of the judgment on the award, as well as from the refusal of the court to sustain the motion to strike out said judgment.

We have no doubt that under the rule and practice of this *455 court the appellants, on the suggestion filed, are entitled to the writ. The suggestion contains all the necessary averments of the fact, that the appeal was asked from the original judgment, and the court must assume the truthfulness of the statement. Any other mode of procedure would impose, necessarily, on the court the duty of carefully examining the records in advance of the trials — and that too in a disputatious spirit — to discover whether or not the proposed amendment would be of importance to the interests of the party desiring it. Such a task would consume the time of the court to the great injury of the interests of its suitors. It has always been customary for the court to confide in the sworn statements of its officers, and there is certainly nothing in the circumstances of this case to require a departure from that habit. Being of the opinion that the appellants are entitled to their writ, under the agreement, we are to consider the record amended, so as to show an appeal both from the original judgment and from the refusal of the court to strike it out.

It appears from the record that there was rendered against the appellants, as administrators of Arthur Johnston, a judgment on an award made under reference of Washington county court. The proceeding originally commenced by an action against William Price, Thomas Martin and Arthur Johnston. At March term 1847, the death of Johnston was suggested; subsequently, the appellants, as his administrators, appeared, and the case was carried on against them. In the case against Price & Martin, ( 4 Md. Rep., 514 ,) William Price was undoubtedly the attorney for the defendants. Under the order of court, in pursuance of the act of Assembly, both that case and the one which was carried on against the appellants, as administrators, were referred to certain parties. The referees made an award, which was filed in both cases, and on which a judgment was entered in both. To this award exceptions were filed in each case by “the counsel for the defendants.” These exceptions were not entitled in any cause, nor signed by any counsel, the only averment in the record in regard to them being, that they had been filed in *456 each case “by the counsel for the defendant;” but this, say the court, in the case of Price & Martin, vs. Thomas & George, 4 Md. Rep., 521 , “was sufficient to impress them with the stamp of genuineness, which is all that is necessary.” The same case decides the award in this case — for it is the same as the one in that case — is defective, for matters apparent on its face. This being so, it is clear the county court was wrong in overruling the exceptions filed and giving judgment, unless there be something else in the case which relieves it from the decision to which we have adverted.

It appears from some of the affidavits filed in support of the motion to strike out the judgment, that Mr. Alexander Neill was not authorised, and did not knowingly order his appearance to be entered in this cause, although .he was authorised and did understandingly appear in the other case and file the exceptions, a copy of which were also filed in this case and overruled by the court. It is upon these facts that the appellants ask that the judgment be stricken out, and upon them that the appellees insist the original judgment was properly rendered, because no exceptions were properly filed in the cause; and also, that under the act of Assembly of 3785, ch. 80, sec. 11, the judgment, as a matter of course, follows the award, where it has not been excepted to.

In considering the correctness of the original judgment, we are confined to the state of the case at the time it was rendered, and cannot look to anything subsequently thereto appearing in the record. To judge of the accuracy of the action of the inferior court by anything which did not appear to it, would be to do injustice to its opinion. Its judgment could only be pronounced on the then existing state of facts, and not upon anything which might, at any distance of time thereafter, be made to appear. And, contemplating the case, it is obvious to us the court erred in rendering the judgment. If the exceptions were properly in the case, then, under the decision in 4 Md. Rep., 514 , the award was defective, and on it no valid judgment could be entered up; and if, on the other hand, there was no counsel for the appellants in the case, then *457 there could be no legal award, for there could have been no legal reference, there being no one in such case to give consent to it. In either aspect of the case the judgment was erroneous, and ought to be reversed. But we are of opinion there was counsel in the case, and that it is a matter of indifference whether or not Mr. Neill was of counsel for the appellants. Mr. Price was undoubtedly so, and the exceptions, under the decision in 4 Md. Rep., 514 , must be taken, in any event, as having been filed by him; he being, most certainly, one of “the counsel of the defendants.”.

These observations dispose of the original judgment, and dispense us from all necessity of an examination of the affidavits filed on the motion to strike out the judgment. Reversing the original judgment, it follows, necessarily, that the ruling of the court on the motion to strike out must also-be reversed.

Judgment reversed and procedendo awarded*