Burke v. Associates Loan Co. , 210 Md. 211 ( 1956 )

210 Md. 211 (1956) 123 A.2d 206

BURKE
v.
ASSOCIATES LOAN COMPANY

[No. 190, October Term, 1955.]

Court of Appeals of Maryland.

Decided June 6, 1956.

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.

COLLINS, J., delivered the opinion of the Court.

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.