302 ARTICLE 5

Application of this section.

This section has no application where the record does not disclose a legal cause of
action Lester v Hardesty, 29 Md 55

Where the court reverses the order of the court below in a mandamus case, but
the judgment of reversal is not necessarily final, this section is applicable Harwood v
Marshall, 9 Md 107

This section haa no application where the judgment is in favor of the plaintiff and
that judgment is affirmed, the defendant not having availed himself of evidence which
he might have produced at the trial McKee v McKee, 16 Md 521 And see Manning v
Hays, 6 Md 10

For a full discussion of when this section operates, see Archer v State, 74 Md 432,
Farmers' Bank v Bowie, 4 Md 295, Kennerly v Wilson, 2 Md 259

This section applied Canton Bank v American Bonding Co, 111 Md 53, State v
Baltimore, etc , R R Co, 77 Md 493, Lucke v Clothing Cutters, etc, 77 Md 411,
Earnshaw v Sun Mutual, etc , Society, 68 Md 477, Worthington v Cooke, 52 Md
310, Farmers' Bank v. Thomas, 37 Md 258, Howard v Carpenter, 22 Md 256, Richard-
son v Hall, 21 Md 405, Beall v Beall, 7 Gill, 237, Parker v Sedwick, 4 Gill, 325

Generally.

The propriety of the new trial must appear from the record McCann v Sloan, 26 Md
82, B & O R R Co v Black, 107 Md 668

A demurrer to a plea having been overruled, and the plaintiff having declined to reply
after leave, the case will not be remanded Wiley v Heaps, 89 Md 47

Instead of granting a new trial as this section authorizes, the court of appeals may
merely grant leave to the appellants to file an application for a new trial State v
Wilson, 107 Md 137

Where a count in a declaration was technically bad, but an instruction that there
was no evidence legally sufficient under the pleadings to entitle the plaintiff to re-
cover waa apparently based on grounds which the court of appeals did not concur in,
the case was affirmed but remanded for a new trial under this section Tyng v Wood-
ward, 121 Md 438

The court of appeals may award a new trial, if it appears that a new trial should be
had, although it affirms the judgment, this power is not limited to cases disposed
of on the pleadings, proviso that affirmance is without prejudice to claim of plaintiff
for certain work Purpose of this section Cases reviewed Md Cas Co v West Constr
Co , 139 Md 178

Judgment affirmed and new trial awarded under this section in order that plaintiff
may prove actual value of stock Schneider v Brewing Co , 136 Md 156

This section does not authorize the court of appeals to review the action of the lower
court upon a motion for a new tnal Produce Exchange v N Y, P & N R R Co,
130 Md. 113

Judgment reversed without awarding a new trial but with leave to appellees to apply
for a new tnal, such application to be then determined Nat Life Ins Co of U S v
Fleming, 127 Md 188

Case remanded under this section in order that by proper amendment, it may be
tried upon its ments McCurdy v Jessop, 126 Md 327

Case remanded under this section, so that narr may be amended, appellant to
pay costs Rieger & Co v Knight, 128 Md 201

Where the lower court has not awarded the writ of mandamus but merely a judg-
ment for costs, the appellate court has the power under this section to award the
writ without remanding the case Weber v Zimmerman, 23 Md 55

This section vests the court with discretionary power to remand a case to the lower
court for tnal upon its ments Creager v Hooper, 83 Md 504, Milske v Steiner, etc,
Co , 103 Md 251

This section indicates a design to give to the appellate court more extended control
Lester v Hardesty, 29 Md 57 (dissenting opinion)

This section gives the appellate court no power to modify criminal sentences, or to
direct inferior courts to modify them McDonald v State, 45 Md 97 (See, however,
sec 87, passed to give the court such power)

For a case holding that the defendant had been given ample notice of a tnal fol-
lowing the remanding of a case under this section, see Weber v Fickey, 52 Md 511

Cited but not construed m Stewart Taxi Co v Getz, 118 Md 176, United Rys Co v
Corbin, 109 Md 56, State v B & O R R Co , 48 Md 81

Cited in Holler v Miller, Daily Record, Dec 11, 1939

Case remanded to correct misjoinder, if declaration contains several counts, joint
participation of all defendants must be averred in each Tong v Feldman, 152 Md 407

An Code, 1924, sec 25 1912, sec 22A 1914, chs 149 and 248

25 If it appears to the Court of Appeals that a reversible error affects
a severable item or part only of the matters in controversy, the Court may