Summary
holding that a party must make his objection to a ruling known to the court when the ruling is made
Summary of this case from Brockington v. GrimsteadOpinion
[No. 190, October Term, 1955.]
Decided June 6, 1956.
APPEAL — Point Not Decided Below May Not Be Decided On — Objection To Ruling Must Be Made At Time — Rules Applied To Objection That Demurrer Lacked Affidavit of No Intention To Delay. Under Appeals Rule 9, the Court of Appeals cannot decide any point or question which does not plainly appear to have been tried and decided by the court below and, under Appeals Rule 17, a party must make known to the court his objection to a ruling at the time when the ruling is made. In the instant appeal from an order sustaining a demurrer to a bill of complaint in equity, the appellant, for the first time, raised the point that the demurrer should have been overruled because it lacked the supporting affidavit that it was not intended for delay, required by General Equity Rule 18. It was held that the Court could not decide the point because of non-compliance with Appeals Rules 9 and 17. It was also stated that if the point had been raised, an amendment would probably have been allowed. p. 212
Decided June 6, 1956.
Appeal from the Circuit Court for Baltimore County (GONTRUM, J.).
Bill in equity by James M. Burke against Associates Loan Company. From an order sustaining a demurrer to the bill, complainant appealed.
Order affirmed, with costs.
The cause was argued before BRUNE, C.J., and DELAPLAINE, COLLINS, HENDERSON and HAMMOND, JJ.
James M. Burke, in proper person, for appellant.
Edward Pierson, with whom were Pierson Pierson, and Smalkin, Hessian, Martin Taylor on the brief, for appellee.
This is an appeal from an order sustaining appellee's, Associate Loan Company's, demurrer to appellant's, James M. Burke's, bill of complaint.
The single contention by the appellant in this case is that the demurrer should have been overruled because it lacked the supporting affidavit that it was not intended for delay, as required by General Equity Rule 18 of this Court.
Although this affidavit was lacking, this fact was not brought to the attention of the chancellor. This Court cannot decide any point or question which does not plainly appear by the record to have been tried and decided by the court below. Rule 9 of the Rules and Regulations Respecting Appeals to this Court. Davis v. State, 189 Md. 269, 273, 55 A.2d 702; Gore v. Jarrett, 192 Md. 513, 519, 64 A.2d 550, and cases there cited; Fox v. Grando, 194 Md. 62, 67, 69 A.2d 795; Schneider v. Davis, 194 Md. 316, 71 A.2d 32.
The appellant did not make known to the court his objection at the time of the ruling as required by Rule 17 of the Rules and Regulations Respecting Appeals to this Court. State Roads Commission v. Berry, 208 Md. 461, 466, 118 A.2d 649.
If the appellant had raised this point below, the chancellor undoubtedly would have allowed the appellee to amend the demurrer by supplying the necessary affidavit. Wagoner v. Wagoner, 76 Md. 311, 314, 25 A. 338. The order will therefore be affirmed.
Order affirmed, with costs.