Ellicott v. Eustace , 6 Md. 506 ( 1854 )

Mason, J.,

delivered'the opinion of this court.

One of the questions in this case, which lies at the foundation of the appellants’ right of appeal, has been so often determined in our own courts, and elsewhere, as to be no ¡longer an open question.

The present appeal was taken from the refusal of the court below to allow the defendants to amend their pleadings. It has been decided that from such a judicial act no appeal will lie, because it rests in the sound discretion of the court. In the case of Crockett vs. Parke, 7 Gill, 237, the court expressly except from the operation of the act of 1785, ch. 87, allowing the right of appeal, the cases of “motions for new trials, for the postponement or continuance of a cause, for the amendment of pleadings, or any other matter resting exclusively in the sound discretion of the county court.”

And in the case of Gordon vs. Downey, 1 Gill, 41, the court say, that “an application for an amendment of pleadings is not a demand of a matter of right, but is an appeal to the sound judicial discretion of the court.” See also 4 Md. Rep., 493, and Thomas vs. Doub, 1 Md. Rep., 252.

The same principle is recognised in a number of other cases, which we need not particularly refer to. The rule itself, and the philosophy of it, are perhaps stated more fully and satisfactorily in the case of the Marine Insurance Company of Alexandria, vs. Hodgson, 6 Cranch, 206, than in any other case that we have seen.

In what we have said we do not wish to be understood as .admitting, that the present record properly presents the question which we are asked to review. We have only said that the ruling by the court below, however presented, was not a subject to be reviewed in this court, and therefore the present appeal must b.e dismissed.

Appeal dismissed,