Kennerly v. Wilson , 2 Md. 245 ( 1852 )

Mason, J.,

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 1826. The act of 1830 appeared to have been passed merely for the purpose of enlarging the powers conferred by the act of 1790, so as to authorise the court to grant a procedendo as well in cases where the judgment was affirmed upon exceptions as where it was reversed; and it has been contended that this last act is to be taken as a legislative interpretation of the act of 1826, in this, that the act of 1826 could not have embraced the case of an affirmed judgment upon exceptions, otherwise the act of 1830 never would have been passed. If this be true to what cases did the act of 1826 apply? Certainly not to judgments of reversal on exceptions, because that class of cases had been fully met ,by the act of 1790. Unless, then, the act of 1826 extended to cases like the present its application must be narrowed down to those of reversal on demurrer, or it had no meaning at all. And it could have had no application to such cases even, because, before the act of 1826, this court had exercised the power of awarding a procedendo in cases of reversal on demurrer. 7 Har. & John. 372, Neale vs. Clautice. If this act does not embrace the present case it never can have any vitality—it must always be without efficacy. Surely this cannot be. The legislature must have designed the accomplishment of some object when it passed the act of 1826.

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,) “that it appears to be just,” that the application should be granted “for a rehearing of the case,” and accordingly we direct our clerk to issue a writ of procedendo.

Procedendo for a rehearing awarded under the act of 1826, chap. 200, sec. 10.