Hamilton v. State ex rel. Hardesty

32 Md. 348 | Md. | 1870

Alvey, J.,

delivered the opinion of the Court.

The Code, Art. 75, sec. 87, provides that “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 esi on a summons issued in such countyand in this case, the defendant, having tendered his plea, in the nature of a plea of abatement, at the appearance term, and before defence taken, with a proper affidavit as to its truth, alleging his non-residence in the city of Baltimore, and his residence in Baltimore county, and that no summons had been issued against him and returned in the county of his residence, we are at a loss to understand upon what ground such plea was rejected. If upon the ground that the privilege should have been availed of by motion, and not by plea, we think the Court was clearly in error. For while, by our practice, such privilege is generally allowed on motion, supported by affidavit, it does not follow that it may not be the subject-matter of a formal plea. And that such privilege is matter of plea, will abundantly appear from Chitty on Plead., 444, 458. We think, therefore, that the Court below was in error in rejecting the appellant’s plea of non-residence.

The appellant’s exception to the reading of the injunction-bond, on which the suit was brought, because it did not appear that the order granting the injunction required a bond to be given, cannot be sustained. For, without other proof of the terms of the order itself, the bond recites that the injunction was ordered to be issued “ on the complainant’s filing with the clerk of the said Court a bond, executed by himself, and a surety or sureties, to be approved by the Court,” &c., and, having thus solemnly admitted the fact, under his hand and seal, he is precluded from denying it. He is estopped upon the question. Lloyd vs. Burgess, 4 Gill, 187. And as to the idea that the order, directing the injunction to issue, is to be treated as a nullity, because it does not specifically define the matter upon which the writ was to operate, we think that equally untenable. The order, of course, was to be construed with reference to the prayer and object of the bill upon which it was granted.

The object of the second, third and fourth exceptions would seem to be to raise the question as to the extent of the liability of the injunction-bond, sued on in this case.

The bond was filed and approved on the 16th of 'November, 1858, and the injunction was dissolved on the 16th of May, 1859. An appeal was taken from the order of dissolution, and an appeal bond executed on the 19th of May, 1859, and approved on the 24th of the same month. The order of dissolution was affirmed in the Court of Appeals on the 30th of May, 1860. Row, which of these bonds is properly liable for the damages that accrued to the defendant in the injunction proceedings, by reason of the delay and obstruction of his rights during the pendency of the appeal? It is contended by the appellant that the appeal-bond is exclusively liable, and that the liability of the injunction-bond is limited to the time of the order of dissolution appealed from. .But that is not our conclusion.

Taking the appeal, and giving the appeal-bond, as required by law, had the effect of staying and suspending the operation of the order of dissolution, and of leaving the order granting the injunction in full force, as if no order dissolving the injunction had passed. The defendant, in those proceedings, was not at liberty to proceed with the foreclosure of his mortgage, or the collection of his rents, during the pendency of the appeal, nor could he have sued the injuuction-bond after the order of dissolution and before its affirmance by the Court of Appeals; for, after filing the appeal-bond, and, by that means, staying and suspending the effect of the order of dissolution, the injunction was as operative as ever. It was not until the order of dissolution was affirmed by the Court of Appeals, that the liability of the injunction-bond became fixed; and, though the appeal-bond was conditioned to prosecute the appeal with effect, and by breach of which the appellee became entitled to recover for damages sustained by ■ reason of the appeal, it is but cumulative security to the injunction-bond, except as to the costs on the appeal, to which the appeal-bond alone is chargeable. The rulings of the Court in these exceptions are, therefore, affirmed.

(Decided 10th March, 1870.)

As to the fifth exception, we can perceive no reason why the question asked the plaintiff, while being examined as a witness, was not proper. It was in reference to a fact very proper to be proved, and, if the answer to it were at all calculated to mislead the jury, as contended by the appellant, it could only have that effect because of a defective cross-examination.

The sixth exception taken to the granting of the appellee’s prayer we have to sustain, because there is no evidence whatever in the record to sustain its hypothesis. Whether there was any evidence given .on the trial, tending to prove that the appellee ever paid the prior landlord a sum due on the premises, for a year’s rent in arrear, at the time of levying the distress, or to prove that notice was ever given, or demand made by such prior landlord of rent due, the record before us is wholly silent. And this is a defect not obviated by the Act of 1862, ch. 154. Mayor and C. C. of Baltimore vs. Poultney & Trimble, 25 Md., 18.

It follows that the judgment appealed from must be reversed, and a new trial awarded.

Judgment- reversed and new trial awarded.