Mondell v. Shafer , 1878 Md. LEXIS 67 ( 1878 )

Robinson, J.

delivered the opinion of the Court.

The Code provides that whenever a defendant has been summoned, and fails to appear or to put in an answer, the Court may, upon the application of the complainants, pass an interlocutory decree and direct a commission ex parte to issue to take testimony to support the allegations in the bill; and the testimony thus taken shall have the same effect as if taken in the usual way on answer, and the Court shall proceed to a final decree in the cause, in the same manner as if the defendant had appeared and put in his answer. See. 115, Art. 16, Code.

In this case the defendants, now appellants, were summoned hut failed to appear, and on application by the complainant, an interlocutory decree was passed, and an ex parte commission was issued to take testimony.

On the 17th of October, 1876, the testimony taken under the commission was returned, and the defendants still not appearing-, the case was set down under the rules of the Court for hearing, and on the 18th of November following, a final decree was passed.

On the 17th day of August, 1877, being but one day less than nine months, an appeal was taken, and it is now contended that the decree below ought to he reversed, because the only proof offered before the commissioner was a paper purporting to be a certified copy of the complainant’s mortgage, to which the clerk failed to affix the seal of the Court.

The Code however provides, that on an appeal from a Court of equity, no objection to the competency of witnesses, or to the admissibility of evidence, shall be made in the Court of Appeals, unless it appears by the record that such objection was made in the Court below. Sec. 26, Art. 24, Code. Under this section it has been decided that an objection to an office copy, on the ground that the seal of the Court is not affixed to it, cannot be made for the first time in the Appellate Court. Phelan & Bogue vs. Crosby, 2 Gill, 462; Carroll’s Lessee vs. Norwood, 4 H. & McH., 287.

(Decided 23rd July, 1878.)

If then the testimony taken in this case, under an ex parte commission, is to have the same effect as if it had been taken on the appearance of the defendants, and on answers filed by them, it is clear the objection to the certified copy of the mortgage for the want of the seal of the Court cannot now be made, no such objection having been made in the Court below. Unauthenticated copies are often offered in evidence by consent, or if not offered by consent, and the objection had been made at the proper time, it could easily have been obviated.

It is no answer to say the defendants were not in Court to make the objection. They had been summoned and it was their business to have been there, or take the consequences of their own default.

For these reasons the decree below will be affirmed.

Decree affirmed and cause remanded.