Cherry v. Baker

17 Md. 75, 1861 Md. LEXIS 19

• Court: Court of Appeals of Maryland
• Decided: March 26, 1861
• Status: Published

Opinion

Bartol, J.,

delivered the opinion of this court.

In the progress of this cause a great many points were made and exceptions taken, ali of which are set out in the record and bills of exception. But in the argument in this court, most of them were abandoned, and are not, therefore, necessary to be noticed.

The only questions discussed before us, and upon which we are asked to reverse the judgment, arise upon the third and fifth bills of exception, and involve the question of the admissibility of tire evidence taken and returned under the commission executed in New York. The appellant contends that the commission issued irregularly, and not in conformity with the 29th rule of the Superior court for Baltimore city. But the record nowhere informs us what the 29th rule of that court is; and as we cannot take judicial notice of the rules regulating the course of proceedings in the inferior courts, this objection has nothing to sustain it. In the absence of proof, the presumption is, that the proceedings had in the court below were in conformity with its own rules.

The record does not sustain the other objection made by the appellant to the commission. The commission was issued, by the consent of parties, on the 13th day of January 1858. The interrogatories of the plaintiff were sent with the commission, with the endorsement thereon by the defendant’s attorney, acknowledging service.

This endorsement, as it appears in the record, is dated July 23th, 1858. But it is manifest that the date is erroneous. The commission was returned executed on the 31st of March 1858, and the interrogatories, with the endorsement of “service admitted,” were returned with it. In the face of this evidence, apparent on the record, that the defendant consented to the issuing of the commission, and, admitted service of the interrogatories before the commission was issued, he cannot be heard to object that the commission issued irregularly and without notice.

(Decided March 26th, 1861.)

Judgment affirmed,