Cecil v. Harrington

Cochran, J., delivered the opinion of this court The appellant in this case, was not a party to the original proceedings in the orphans court, but being interested as heir and distributee, he might be said to be aggrieved by the decision, which was adverse to his interest. Under the rulings of this court'he was entitled to an appeal, although not technically a party. Stevenson vs. Schriver, 9 G. & J., 324. Parker vs. Gwynn, 4 Md. Rep., 423. The mode of proceeding, to obtain the benefit of an appeal in such a case, is prescribed by the 5th Art', of the Code, sec. 40: Without repeating the provision at length, it is sufficient to say, that it in terms declares, that a party shall -not be allowed to appeal, “unless he shall immediately certify his intention, and request that the testimony may be reduced to writing, that in such case the depositions shall be at the cost of the party” making the request. This requirement has not been gratified in this case. The record contains no depositions, properly so called. What purports to be the testimony taken below, was taken, ex-parte, by the appellant’s counsel, from notes or memoranda taken at the trial, and is certified by the judges to be substantially correct. The orphans court is not authorized, by law, to make auyr such certificate of evidence taken before them, in a proceeding like this,, nor does the law contémplale that the appellate court shall review their decision upon a statement of evidence, or facts, made by the judges of the orphans court.- The Code provides, and requires, ihat the depositions of the witnesses shall be reduced to writing as given by them: Without this is done, the cause is not properly be [513] fore us for review, and the appeal must be dismissed. We forbear the expression of any opinion upon the other questions presented by the arguments. (Decided July 9th, 1862.) Appeal dismissed.