This appeal, is from an order of the Circuit Court, for Wicomico County, overruling a motion to strike out a judgment which had been rendered on the 4th of June, 1910, by that Court, in favor of the plaintiff against the defendant, Benjamin S. Jones, for the sum of $655.81, with interest and costs.
The suit in which the judgment was entered, was instituted by the plaintiff, the appellee here, on the 2nd day of May, 1902, to recover damages alleged to have been caused by the issuing of an injunction at the instance of the appellant and was brought upon the bond filed in the injunction case. The suit, was brought in the Circuit Court for Worcester County, but was removed to Wicomico county and the *Page 69 judgment here sought to be stricken out, is the result of the third trial of the issues in the case, the jury on each trial finding a verdict in favor of the plaintiff.
The first judgment was reversed on appeal to this Court, and a new trial awarded, reported in Jones v. Jones, 101 Md. 512, for errors of the Court below, in its rulings on the prayers.
The second verdict of the jury for the plaintiff and damages assessed at $486.31 was rendered on the 5th of April, 1906, and was set aside by the Court below and a new trial granted on the 28th of September, 1908, because as stated by the appellee in her answer to the motion to strike out this judgment "owing to the long delay in preparing exceptions, the Court refused to sign them, not being able to recall the testimony as given at the trial."
Upon the third trial and the one we are now considering, the following proceedings were had, as set out by the docket entries in the case:
1910 — April 14 — Verdict of jury for plaintiff and damages
assessed at $655.81.
1910 — April 14 — Motion and judgment on verdict nisi.
April 14 — Plaintiff's first and second prayers granted
filed.
April 14 — Defendants' first, second, fourth, fifth and
eleventh prayers granted filed.
April 14 — Defendants' third, sixth, seventh, eighth, ninth
and tenth prayers rejected filed.
April 14 — Leave granted defendants 30 days to file
exceptions.
April 15 — Motion for new trial filed.
May 12 — Order of Court granting the defendant extension
of time to June 13, to file exceptions.
June 4 — Motion for new trial overruled.
June 4 — Judgment extended in favor of the plaintiff
for the sum of $655.81, with interest and costs.
June 13 — Order of Court extending time to July 13th,
for defendant to file exceptions filed.
June 14 — Order for an appeal and affidavit filed.
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June 16 — Appeal bond approved and filed.
July 12 — Order extending time to August 13th, for
defendant to file bills of exceptions filed.
July 27 — Bill of exceptions filed with JUDGE PATTISON
as per letter filed.
September 15 — Petition and motion to strike out judgment
filed.
1910 — September 17 — Answer filed.
1911 — February 20 — Argument, argued. Sub Curia.
July 3 — Affidavit of John H. Handy filed.
September 16 — Bill of exceptions filed by JUDGE PATTISON,
with his declination to sign endorsed thereon.
September 16 — Motion to strike out judgment overruled
as per order filed.
September 27 — Leave granted defendant to file exceptions
by October 3, 1911.
September 30 — Petition and order of Court extending
time to October 17 to defendant to file bills of exceptions
filed.
November 15 — Order for an appeal and affidavit filed.
The motion to strike out the judgment and to re-instate the case, for trial, is based upon the single averment, set out in the appellant's petition, that the prayers of both plaintiff and defendant granted at the trial of the case, had been lost and that no complete record, of the rulings of the Court can be presented here for review, and no proper bills of exception can be prepared until the prayers are found.
While the plaintiff in her answer to the defendant's petition does not deny the allegations of the petition, she avers, that even, if the prayers are lost or misplaced, the plaintiff or her attorneys are not responsible, neither she nor they having had or seen same since the trial or connived at or induced the loss or misplacement of the prayers in any manner, and the loss or misplacement of the prayers, while perhaps a misfortune to the defendant, Benjamin S. Jones, is no fault of the plaintiff and no cause for striking out the judgment. *Page 71
And it is further averred that the filing of the exception as to rulings of the Court upon admissibility of testimony, alone, was a waiver of any exceptions as to the prayers, even if they had been reserved at the trial, which do not appear from the record.
The case was heard upon the petition, answer and motion, on the 20th of February, 1911, and by an order of Court dated the 16th day of September, 1911, the motion to strike out the judgment was overruled. And from this order an appeal was entered on the 15th day of November, 1911.
The record now before us, only contains the petition to strike out the judgment, the plaintiff's answer thereto, the order of Court on the petition and the order for appeal. There are no bills of exceptions presenting the questions of fact, nor any petition designating the points or questions of law, by which the party appealing feels aggrieved or the questions of law decided by the Court below. In such a state of case, it has frequently been held, that this Court cannot review the action or rulings of the Court below, upon the merits of the case on appeal, unless the record itself discloses the questions passed upon and decided by the Court below. Cockey v. Ensor, 43 Md. 266; Main v.Kinzer, 91 Md. 760; Baltimore City v. Austin, 95 Md. 90;Long v. Hawken, 114 Md. 240; Coulbourn v. Fleming,78 Md. 210; Palmenburg v. Turk, 116 Md. 8.
The judgment in the case was entered on the 4th day of June, 1910, and the motion to strike out, was not made until the 15th of September, 1910, long after the expiration of the term at which it had been rendered, and after the judgment had become enrolled.
It is well settled that when a motion is made to set aside a judgment after the term at which it was rendered, the proof of fraud, deceit, surprise or mistake must be clear and satisfactory, and it must appear that the party making the application has acted in good faith and with ordinary diligence. *Page 72 Abell v. Simon, 49 Md. 318; Smith v. Black, 51 Md. 247;Poe's Pleading and Practice, Vol. II, sec. 392.
There is nothing in the case appearing from the record or docket entries that shows error in the ruling of the Court in overruling the motion to strike out this judgment. The verdict and judgment were entered in the regular manner and there is an absence of proof of any ground, the existence of which would warrant the vacation of the judgment.
The only ground relied upon by the appellant, to strike out the judgment is because the prayers were lost and no record could be made up for this Court. Assuming, this to be true, the mere fact alone of the loss of the prayers would be no sufficient ground or reason for striking out the judgment, on the facts before us. It appears however, from the bill of exception presented to JUDGE PATTISON on the 27th of July, 1910, nearly two months before the motion to strike out the judgment (15th of September) had been entered that the appellant did not rely upon the rulings of the Court upon the prayers to sustain his appeal, but solely upon the ruling of the Court, in the exclusion of certain testimony offered upon the part of the defendant. This bill of exception the Court declined to sign, because of its insufficiency in the statement of the evidence offered at the trial.
Subsequently the time for preparing bills of exceptions in the case were extended by the Court, until and including October 17th, 1911, and no steps were taken to have the prayers restored or supplied or incorporated in a bill of exception.
This Court cannot presume that the Court below committed an error in its rulings on the prayers, but on the contrary, in the absence of error disclosed, we must presume as in other cases, that the Court decided properly.
In Hollowell v. Miller, 17 Md. 305, it was said, a judgment below, coming up by appeal, is prima facie correct and cannot be reversed by the appellate Court, unless they are *Page 73 convinced it is erroneous. Alexander v. Macauley, 6 Md. 375;Burtles v. State, 4 Md. 278.
In Visher v. Webster, 13 Cal. 60, it is distinctly held, that the mere fact of the loss of instructions or prayers is no ground for a reversal of the judgment appealed from. Zweibel v.Caldwell, 72 Neb. 47; State v. Jefferson, 77 Mo. 139;Birney v. Sharp, 78 Mo. 73; Addems v. Suver, 89 Ill. 484;Saxton v. Harrington, 68 Neb. 450.
We find, in the record, no sufficient grounds for reversing the order appealed from, and for the reasons given, it will be affirmed.
Order affirmed, with costs.