Holt v. Tennallytown & Rockville Railroad

81 Md. 219 | Md. | 1895

Fowler, J.,

delivered the opinion of the Court.

The motion to dismiss the appeal in this case must be overruled, for it appears from the affidavits filed that the delay in transmitting the transcript of record to this Court was the fault of the Clerk of the Court below.

The plaintiff, having been injured as he alleges, by the negligence of the defendant, a railroad corporation, he instituted an action in the Circuit Court for Montgomery County to recover damages. Issue having been joined, the defendant suggested that the plaintiff was a non-resident, and asked the Court to place him under a rule security for costs, which .was accordingly done, and on the same day the defendant also filed a suggestion for removal, and an order was thereupon passed to remove the. cause to the Circuit Court for Anne Arundel County, in which Court the record was filed on the 19th of April, 1893. On the 16th of October following, the defendant moved to enforce the rule security which had been laid in Montgomery County. This motion, at the instance of the plaintiff’s attorney, was not pressed. At any rate no action was taken, and the case was continued. On the first day of January term, 1894, the defendant again moved the Court to enforce the rule security of the Circuit Court for Montgomery County, which was accordingly done. The plaintiff being in default a judgment of nonpros, was therefore entered against him.

1. The question of the constitutionality of the provision of our Code, Art. 24, sec. 9, requiring non-resident plaintiffs to give security for costs as therein provided, was fully argued by plaintiffs counsel, but it was said forty years ago by our predecessors that this law, having then been in operation for more than half a century, and having always been recognized by the profession, both on the bench and at the bar, as a valid law, they were not disposed to declare it a nullity. Haney v. Marshall, 9 Md. 194. And at this late day we are equally unwilling to interfere with its opera-' tion by declaring it unconstitutional and void, because in violation of section 2, Article 4, of the Constitution of the United States, this being the same ground of objection which was urged in 9th Md.

2. Is the rule security of the Montgomery County Court enforceable in the Circuit Court for Anne Arundel County? We think it is. This view is in conformity with the general practice, and will enlarge the operation of the law in question, which was passed for the protection of resident defendants. If the rule can be enforced only in the county where it is laid, the plaintiff could escape from all obligation to comply with it by simply filing a suggestion for removal. And in that event the defendant would be compelled to have .another rule laid in the county to which the cause should be removed or lose the protection the law affords him. Nor do we think that the fact of removal should be allowed to :make any change in the time within which the plaintiff is .required to give security. In this case the rule was laid at the March term, 1893, of the Montgomery County Court, .and the plaintiff had until the second day of the next term •of that Court to comply, that is to say, until the sixth of June, and having failed so to do, he was in default at the time the judgment of non pros, was entered, namely, at the January term, 1894, of the Anne Arundel County Court.

3. It was suggested that the defendant waived its right to enforce the rule because of delay, and that having failed -to act more promptly, it ought not to have been allowed to take advantage of the plaintiff’s default. In the case of Heinekamp & Sons v. Beatty, 74 Md. 388, the rule security was laid on the 23rd September, 1889, and the judgment of non pros, for failure to comply with it was not moved for until the 30th September following, or more than nine months after default. It is true there was no question made in the case just cited, as to delay on the part of the defendant, but it seems to have been assumed by counsel and Court, that notwithstanding the lapse of time, the defendant would have been entitled to enforce the rule if it had not been complied with before the judgment was entered. In the case we are considering there was a delay of less than eight months, the default of the plaintiff having occurred on the sixth of June, 1893, and the judgment having been taken on the 16th January, 1894. But, as it .appears to be conceded that the defendant may obtain the .rule at any time before the beginning of the trial, unless .temporarily waived as by continuance by consent, (Haney v. Marshall, 9 Md. 209; Spencer v. Trafford, 42 Md. 1 ; 2 Poe Plead, and Prac., sec. 78), it would seem to follow that the right to enforce the penalty for failure to comply with the rule must continue to exist to the same period.

(Decided April 4th, 1895.)

Finding no error, the judgment will be affirmed.

Judgment affirmed zvith costs.