Sieling v. Brunner

*684 Bubke, J., delivered tbe opinion of tbe Court. Tbe appellee sued tbe appellant in assumpsit in tbe Circuit Court for Howard County to recover certain commissions alleged to be due bim for selling’ tbe appellant’s farm. Issue was joined upon tbe general issue pleas,, and tbe case was tried before tbe Court without a jury. Tbe trial resulted in a verdict and judgment for tbe appellee, and tbe defendant bas brought this appeal. Tbe appellee bas filed a motion to dismiss tbe appeal upon two grounds: First, because tbe bills of exception were not submitted to or signed by -the Court within tbe time prescribed by tbe 32nd Buie of tbe Circuit Court for Howard County; secondly, because tbe bills of exception were not submitted to or signed by tbe Count during tbe term at- which tbe case was tried. There was no order signed in tbe case extending tbe time for signing tbe bills of exception. It was said in Carter v. Md. & Pa. R. R., 112 Md. 607, that “under the ordinary practice, although tbe exceptions to a ruling of tbe Court must be taken at tbe time tbe ruling is made, it is neither usual or necessary to prepare tbe bills of exception, or to have them signed until after tbe trial at some convenient time during tbe term at which tbe case is tried; unless otherwise specially ordered by tbe Court, which may by an order passed during tbe term extend the time beyond its expiration. Tbe bills also may be prepared and signed after tbe expiration of tbe term by consent of tbe parties.” There was no consent by tbe appellee to.tbe signing of tbe bills of exception in this case. On tbe contrary, tbe record shows that be positively objected to tbe Court signing them, and it is conceded that they were signed after tbe expiration of tbe term at which the case was tried. Unless, therefore, tbe bills of exception were signed within tbe period limited by tbe 32nd Buie of tbe Circuit Court for Howard County tbe appeal must be dismissed. *685 The portion of that rule wliich bas relation to the question before ns is as follows: “Every exception taken to the ruling of the Court in the progress of a trial shall be noted at the time of the ruling made, and the ground of the exception stated; and when such exception is taken to the granting or refusal of instructions to the jury, the parties so excepting shall state to -what prayer or instruction the exception is intended to imply; and as it would greatly and unnecessarily retard the business of the Court were it required that upon any exception taken the progress of a trial should be stayed until the formal bill of exception should be prepared and signed by the judge or judges, it shall be sufficient that the parties taking the exception note the same at the time of the ruling made, and, thereafter, within a reasonable time after the trial, reduce the exceptions to proper form, in conformity to the rules prescribed by the Court of Appeals for the regulations of appeals, and submit the same to the judge or judges for his or their signature, and in no case shall the progress of the trial be stayed or delayed for the formal preparation of bills of exception or direction of the Court. But in every case, unless otherwise expressly allowed by Ithe Court, the bills of exception shall be prepared and submitted to the Court during the sittings of the term at which such exceptions shall he taken.” The case was tried during the September Term, 1911, of the Circuit Court for Howard County, and on the 25th day of that month a finding was had in favor of the plaintiff for nine hundred and thirty dollars. On the 27th day of September a motion for a new trial was filed by the defendant. This motion was overruled by the Court on December 4th, 1911, and on the same day, during the September Term, the judgment appealed from was entered, and immediately after the entry of the judgment the September Term -was finally adjourned and the December Term called, and twenty-two days thereafter the hills of exception -were signed. *686 The record shows that the Court was in session engaged in the trial of cases until the 29th of September, 1911. The appellant, therefore, had ample time to hare procured an order under the rule extending the time for the preparation and signing of the bills of exception. They were not signed, therefore, during the term at which the case was tried, and no- application was made to the Court, or order signed by it extending the time for signing them. Under the plain language and meaning of the rule, and ujjou the authority of Livers y. Ardinger, 90 Md. 36, which we regard conclusive upon the question, the appeal must be dismissed. Appeal dismissed, with costs to the appellee.