Bridendolph v. Zeller , 5 Md. 58 ( 1853 )

Le Grand, C. J.,

delivered the opinion of this court.

When this case was before us, at December term 1852, we indicated the proper course to be pursued by the appellant, which was, to proceed under the act of 1787, ch. 9. The opinion was expressed on the condition of the record, which showed that a fiat had been entered on the return of one nihil. The record now before us shows that this was not the case, and that there was a second entry on the docket of nihil and, also, that the appellant did file a motion to strike out the judgmentyiai. Had his motion prevailed, he could have appeared to the sci. fa. and pleaded nul liel record, which wmuld have brought directly before the court the existence of the original judgment, and this would have given him every right to which he was entitled. But the court, as it appears from the record now before us, overruled the motion. Instead of appealing from this decision, the appellant sued out a writ of error coram nobis. Failing in the prosecution of that writ, he has sued out of chancery a -writ of error, on which the record is now before us. We think, apart from all questions of form and time, that he can take no advantage from it. There is no point presented to us in the record on which the court below acted, and which we are now permitted to revise. The act of 1825, ch. 117, expressly inhibits this court from reversing any judgment, on any point or question, which was not directly presented to and decided by the court below. The only exceptions to the rule are demurrers and motions in arrest of judgment, and a writ of error is neither of these. The act of 1825 puts appeals and writs of error on the same footing. What are the points before us? Are we to revise what we have decided on the former appeal? Or, are we to decide every question which might have arisen out of the record and been decided by the court below ? Certainly not. The writ does not open the whole record any more than would an- appeal. The writ of error in terms confines the court to errors in the judgment of flat of 1849. What is the error complained of? It is that no valid judgment was entered in 1838, and the refusal of the court to strike it out. This might have been shown by a plea to' the sci.fa. But,it is said, there was no proper return of the sci.fa., and he could not plead.- If this be so his remedy would be to strike out the judgment. It appears a motion was made to strike' out the judgment and overruled'. From this action of the court no appeal was taken, and nothing has been done since' the case' was last before us -which presents any new question, and it cannot be argued with any plausibility that if by this-writ of error any question be presented, it can be any other than the motion to strike out th e'fat. If the party had seen proper to do- so", he might have brought up this question oh his former appeal, and failing to d-o- that he e'annot now obtain relief by another appeal or writ of error.

In Duvall vs. The Farmers Bank of Md., 9 G. & J., 51, the court did consider questions arising in that appeal, which appeared in the record on a prior appeal in the same case; but it was- gravely argued, that it could not be done, although it seems the court,- in their former opinion, expressly waived an examination of those matters, and the court seem to rely upon that waiver on their part, as the reason why they would then examine and decide the questions. In Tolson vs. Tolson, et al., 8 Gill, 389, the court refer to Duvall vs. The Farmers Bank, and recognise the right of the court, on a second appeal, to look into- and decide questions involved in the record previously brought up, when a decision' of those questions was not made upon the former appeal. But it is to be' observed that in both those cases, after they were returned to the courts below, further proceedings were had, giving new grounds for the second appeals. Here, however, nothing was done in the court below since the time of taking the first appeal. In each of the cases referred to the questions considered on the second appeal appeared in the record on the’ first. In one of them we have seen that the court designedly avoided making a decision. In the other it does not appear why the questions were not decided on the first appeal. In' the present case the question now presented did not appeai in the former record, although it had been previously decided below.

If such a proceeding as this can be sustained, it will be apt to introduce very serious delay in bringing suits to a final termination, and occasion very heavy accumulations of Costs.

The case of Duvall vs. The Farmers Bank, does not assert the doctrine, in unqualified terms, even in such a casé as that, where further proceedings had taken place after the first appeal, that the court will examine on the second, questions which Were presented, but not decided, on the first. For they say: “Looking to the fact, that in expressing our former judgment, we expressly waived an examination of the law involved in those exceptions, and did, in truth, never examine, or in any manner decide it, on that appeal, we cannot concur in the argument that such judgment shuts the door to an examination thereof on this appeal.” And on page 50, they assign as the reason for not having examined those questions on the former appeal, that they considered it unnecessary to do so, believing they would never arise again.

But admitting, to the most unqualified extent, that where, subsequent to the first appeal, further proceedings have taken place, on which an appeal might be taken, questions decided below, prior to the first, but not in that examined, may be considered in the second, still that principle would not cover the present Case, where the very questioñ now raised was decided before the former appeal, and nothing since has been done in the court below. To require the appellant in such a case to bring up on his first appeal all questions which had been previously decided, would be no denial of justice to him, whilst to permit him to bring up one question and await the decision of that, and then bring up another, and yet another, as he might see fit, would work great injustice to the appellee. For if a party, under such circumstances, is entitled to two appeals, the same rule would allow him any number, to the extent of the questions decided below. And if the appellant be a defendant below, with a heavy judgment against him, he will, of course, make as many appeals as possible,' if for no other reason, for the purpose of delaying payment as long as possible.

For these reasons, we think the writ of error should be quashed.

Writ of error quashed.