Cumberland Coal & Iron Co. v. McKaig

Bartol, J., delivered the opinion of this Court. The decision of this appeal has been delayed in consequence of the unfortunate illness of our brother G-oldsborough, whose co-operation in the decision lias been necessary, as the cause was heard by three Judges only, and unanimity is required. The result of our examination of the record is, that we are all of opinion there was no error in the action of the Circuit Court for which the appellants can properly claim a reversal. It is unnecessary to state at length the facts of the case, inasmuch as we concur in the views expressed by the Judge of the Circuit Court in his opinion sent up with the record. [267] (Decided 21st June, 1867.) The supposed error in his ruling consists in his refusal to continue the cause on the application of the appellants, to afford them an opportunity to adduce evidence in support of their claim to the property, after they had failed to avail themselves of the opportunity afforded them to take their testimony under tho Court’s order of the 27th of April, 1864. The question of a continuance was one depending upon the discretion of the inferior Court, and its decision thereon is not subject to review or appeal. But the appellant complains that the Circuit Court refused to allow the evidence to be given orally, or produced in writing at the hearing. What the evidence was which was thus rejected is not stated in the record, or in any bill of exceptions, so that the appellate Court can determine upon its pertinency or materiality. Its rejection is therefore no cause for reversal. See Clemens vs. Mayor & C. C. of Baltimore, 16 Md. Rep., 208, and cases there cited. The appellees, under the order appealed from, will be entitled to sell only the interest of Sherman in the property in question, without concluding the rights of the appellants, if any they have to the same, leaving them free to assert that right against the purchaser, inasmuch as the question of right has not been heard and determined in this cause. Order affirmed and cause remanded.