Gabelein v. Plaenker

Stewart, J., delivered the opinion of the Court. From an examination of the record, it appears the Superior Court of Baltimore city had jurisdiction of the subject-matter of the suit, and the parties litigant appeared; issues were made, a trial had before a jury, verdict rendered, motion for a new trial overruled by the Court, judgment rendered on the verdict, and execution issued. [64] The defendant moved to strike out the judgment and quash the fieri faeias; no reasons appear to have been assigned' to sustain the motion. The brief of the appellant filed in this Court relies upon certain grounds of objection to the proceedings in the SupeT rior Court, but which do not appear to have been made during the trial, before the verdict, nor on the motion to strike out the judgment and quash the fieri facias, but are disclosed for the. first time in the application for the writ of error. The record no where shows that the Superior Court pronounced any judgment upon these questions. Under the authority of the 18th section of the 4th Article of the Constitution, this Court has provided rules, to have the force of law, until changed by the Court or the Legislature. They may be found in 29 Md., 1-8. By the first rule, specially applicable to writs of error, and simplifying the form of proceeding, it is required in such cases, that in the petition for the removal of the record, the points or questions of law, in the decision of which, by the Court below, error is alleged, shall be plainly designated, and no point or question not so presented shall be heard or determined by the Court of Appeals. In the application for the wi*it of error in this case, the alleged errors have been specifically assigned as required by this rule; but upon an inspection of the record, it does not appear that the points or questions alleged in the application were made or decided at the trial below. Under the Act' of 1825, chap. 117, they are not open for examination in this Court. This Act is embodied in the fourth rule, which declares that “ in no case shall the Court of Appeals decide any point or question which does not plainly appear by the record to have been tried and decided by the Court below.” Whilst this is a tribunal to review the proceedings of inferior Courts, the law, as well as these rules having the force of law, confines its adjudication to questions [65] determined by such Courts. See Bridendolph vs. Zeller’s Ex’rs., 5 Md., 58. (Decided 16th May, 1872.) No question or point having been made, according to the record in the Court below, in conformity with the mandate of the law, we have no authority to disturb the judgment complained of; on the contrary, every legal intendment is to be made in its favor. The writ of error must therefore be quashed. Writ of Error quashed.