Cromwell v. Willis & Homer

| Md. | Jan 15, 1903

The record in this case contains three appeals from the Court of Common Pleas of Baltimore City, but the principal question on each appeal involves a construction of that part of sec. 132, of Art. 75, of the Code which provides "that any person who resides in one county, but carries on any regular business or habitually engages in any avocation or employment in another county, may be sued in either county."

The question arose in this way. On the 7th of January, 1902, Messrs. George R. Willis and Francis T. Homer, of Baltimore City, law partners, doing business under the firm name of Willis Homer, brought suit in the Court of Common Pleas, against Richard Cromwell, Jr., Charles Hammond Cromwell, appellants, and Joseph R. Wilson, Jr., and Charles F. Digges, who have refused to unite in this appeal, for professional services rendered to the defendants. Thereupon a writ of summons was duly issued to the Sheriff of Baltimore City and was returned endorsed "summoned omnes."

On the 14th of January, 1902, the appellant Richard Cromwell, Jr., filed a motion that judgment of non pros be entered against him for the reason, that he was not at the time of the suit a resident of Baltimore City, but was a resident of Baltimore County; that no writ of summons had been sued out against him in that county and returned non est; that he does not carry on any regular business or habitually engage in any avocation or employment in Baltimore City. The case was heard upon the motion for non pros, and certain affidavits filed therewith. There was no other evidence and the record contains but one bill of exception and that embraces the rulings of the Court in overruling the motion and its refusal to enter the judgment of non pros.

According to the evidence in this case, as presented by the record, the appellant while a resident of Baltimore County, was engaged and employed as president of the Lafayette Mill and Lumber Company of Baltimore City, a corporation duly incorporated for the purpose of buying and selling millwork; that this company has its principal office in the Maryland Trust Building, Baltimore City, where the appellant attends for the transaction of its regular business, but receives no salary as such president. Briefly stated, it is contended upon the part of the appellant under the facts of the case that holding the office of president of a commercial corporation, without receiving a salary, is not carrying on a regular business or engaging in an avocation or employment, within the meaning and intent of sec. 132 of Art. 75 of the Code, so as to render him liable to suit in Baltimore City, and that the Court of Common Pleas was therefore without jurisdiction to hear and determine the case. In other words, as stated by the appellant in his brief, sec. 132 of Art. 75 of the Code, applies only where the business carried on, or the avocation or employment engaged in, is the defendant's own business, avocation or employment.

The obvious answer to this contention is, that the statute does not so limit and restrict its application to the defendant's own business, but its broad language is, that any person who resides in one county but carries on any regular business or habitually engages in any avocation or employment in another county, may be sued in either county.

It can hardly be successfully urged that one who acts as president of a mill and lumber company, a corporation which is regularly engaged in buying and selling mill-work, is not carrying on a regular business, or engaged in a regular employment. The words of a statute must be given their plain, obvious and ordinary meaning, and it would be a narrow and restricted construction to place upon the statute now under consideration to hold that the defendant here was not within its spirit and meaning, because, forsooth, he served a company without compensation, or was not the sole and absolute owner of all the stocks or bonds of the company of which he was president. The phraseology and meaning of the Act before us we think is free from ambiguity and it manifestly applies as its language imports to any person who resides in a county and who carries on a regular business, or who regularly engages in any avocation or any kind of employment, in another county, or in the city of Baltimore.

In the case of Tyler v. Murray, 57 Md. 441, a case decided by this Court prior to the statute now under consideration, it was said in passing upon the question of residence for the purpose of civil process: "Each case must be decided upon the particular language of the statute and the circumstances giving rise to the question. To fulfill the intention and requirements of some statutes a commercial or business residence might be all the law requires; while to gratify the intention of another statute it may be necessary to hold residence to be more than a business residence and to mean all that the word domicile means in its strictest and most technical application." The statute construed in Tyler v. Murray, supra, was modified by the Act of 1888, ch. 456 and the 132 sec. of Art. 75 of the Code, now provides: "No person shall be sued out of the county in which he resides until the sheriff or coroner of the county in which he resides shall have returned a non est on a summons issued in such county; provided, that nothing herein contained shall apply to any person who shall abscond from justice in the county where he lives, but such person may be sued in any county where he may be found; and provided, further, that any person who resides in one county but carries on any regular business, or habitually engages in any avocation or employment in another county, may be sued in either county."

In the recent case of Chappell v. Lacey, 77 Md. 173, this Court, in passing upon this identical statute said: "The section says nothing about the defendant's principal business. If he carries on a regular business or is habitually engaged in several different counties, it might be impossible for any one except himself to determine which of the different occupations was his principal business. The law has not imposed upon plaintiffs the burden of this inquiry." Finding no error in the rulings of the Court below, it will be affirmed.

Rulings affirmed, with costs.

(Decided January 15th, 1903.)