296 ARTICLE 5

The grounds of a motion to set aside a judgment and quash the execution thereon,
must appear in the record Cockey v Ensor, 43 Md 266

If a demurrer to an indictment is not set out in the record, it is not properly before
the court of appeals for review Broil v State, 45 Md 359

Cited but not construed in Havre de Grace v Harlow, 129 Md 267, Weber v Zim-
merman, 22 Md 168, Warner v Fowler, 8 Md 30, Gittings v Mayhew, 6 Md 130,
Pierson v Trail, 1 Md 144, Medley v Williams, 7 G & J 70, Shilknecht v Eastburne
2 G & J 126

For cases now apparently inapplicable to this section by reason of changes in the
law, see Dunham v Clogg, 30 Md 292, Baltimore v Poultney, 25 Md 34 (distinguishing
between the assumption of a fact in a prayer and an insufficiency of evidence to sup-
port a prayer)

As to appeals in equity, see secs 40 and 41

See art 33, sec 29, and notes, and art 75, sec 96

This section applied in Cohen v Fink Piano Co , Inc , 160 Md 443

Cited but not construed in Kroh v Rosenburg, 158 Md 280, Fid & Dep Co v
Sanford & Brooks Co, 158 Md 540, Parks v Skipper, 164 Md 396, Loan Service v
Grossman, 165 Md 480

Cited m Fidelity & Casualty Co v Mahon, 170 Md 577, Cohen v State, 173 Md 234,
Distilleries v Machine Works, 174 Md 21, Callahan v State, 174 Md 50, Parks &
Hull Appliance Corp v Reimsnyder, Daily Record, Jan 6, 1940

An Code, 1924, sec 11 1912, sec 9a 1914, ch 110

11 The fact that a prayer or instruction which refers in general terms
to the pleadings, was granted or refused by the Court below, shall not be
sufficient to show that the point or question of a variance between the
pleadings and the evidence was tried and decided in the Court below, as
required by section 10, and the question of such variance shall not be con-
sidered as having been, raised by any prayer or instruction below, unless
such prayer or instruction shall state specifically the points wherein it is
claimed that such variance exist

This section grew out of the decisions to the effect that notwithstanding sec 10, if
a prayer referred to the pleadings, the appellate court was called upon to examine
them, and if there was a variance, it could be thus taken advantage of, hence judg-
ments were sometimes reversed when the lower court had not really passed on the
question This section should be liberally construed to accomplish its purposes, a prayer
held not sufficiently specific Western Union Tel Co v Bloede, 127 Md 352

Where a prayer does not specifically designate the points of variance between the
pleadings and proof, the court of appeals may not consider such variance B & O
R R Co v Walsh, 142 Md 237 See also Western Md Ry Co v Shatzer, 142 Md 282,
Caltrider v Weant, 147 Md 344, Kahn v Carl Schoen Silk Corp, 147 Md 519, De-
Crette v Mohler, 147 Md 113, Baltimore v Teno, 147 Md 334, Kent County v
Pardee, 151 Md 73, Askm v Moulton, 149 Md 145, Cohen v Herbert, 145 Md 205,
Taxicab Co v Hamburger, 146 Md 129, Kelso v Rice, 146 Md 275, Washington Ry
& Elec Co v Anderson, 168 Md 227

A prayer held not sufficient to raise the question of misjoinder or variance Art 75
sec 97, does not relieve the defect Rosst v Moms, 135 Md 256, Fulton Bldg Co v
Stichel, 135 Md 544

Even if it could be said that a narr in a replevin suit was defective because it was in
detinuit instead of detinet, or on the ground of a variance, neither question was pre-
sented by defendant's prayers Burner v Cunningham Piano Co , 135 Md 142

The failure to file a replication may not be raised by reference in the prayers to
the pleadings, unless such reference is specific See notes to sec 10 Jenkins v Spedden,
136 Md 644

This section has no effect on right of appellant to test ruling on demurrer This
section applies to prayers Omissions of prayers, testimony and exceptions from record
Victory Sparkler Co v Francks, 147 Md 371

Variance prayer is defective unless it states in what the variance consists Nat Real
Estate Dev Corp v Water Co , 167 Md 194

A variance prayer, though defective under this section for failing to state in what
the variance consists, may be treated as a demurrer Roycroft v Nellis, 171 Md 141

Cited in Piper v Wells, 175 Md 333, Lawson et al v Clawson, Daily Record, Dec 12
1939

Cited but not construed in Tippett v Myers, 127 Md 539, May Co v Drury,
160 Md 150

As to powers of Court of Appeals re forms of process, writs, pleadings etc see
art 26, sec 35

As to appeals in Workmen's Compensation claims, see art 101, sec 70

As to Board of Zoning Appeals see Art 66B, sec 7

See art 75, sec 96, and art 5, sec 20

See notes to sec 10