34 Md. 401 | Md. | 1871
delivered the opinion of the Court.
The appeal in this case is taken from an order of the Circuit Court for'Howard county, striking out a judgment in favor of the appellant recovered against the appellees, and remanding the record to the Court of Common Pleas of Baltimore city from which it had be'en removed, on the suggestion of the appellees.
It appears that the action was instituted in the Court of Common Pleas to the January Term thereof, 1869, and in June, 1870, the defendants, the present appellees, made suggestion to the Court, supported by affidavit, that they could not have a fair and impartial trial in that Court, and prayed that the record of proceedings might be ordered to be transmitted to some other Court for trial; but in the suggestion they stated that they did not elect a Court of a different circuit. Upon this suggestion the Court ordered the record to be transmitted to the Circuit Court for Howard county, v'here
It is contended on the part of the appellees, that inasmuch as they did not elect to have the cause removed to some Court of a different circuit from that to which the Common Pleas belongs, but having elected to remain in that particular circuit, it was error in that Court to order the record to be transmitted to the Circuit Court for Howard county, being a Court of a different- circuit, and that the latter Court was wholly without jurisdiction over the cause, and consequently there was no error committed by it in striking out the judgment and remanding the record. But from this proposition we entirely dissent. The Constitution of 1867 would seem to be plain, and to afford no ground whatever for the position of the appellees. By the 8th section of the 4th Article, it is made the duty of the Judges, upon suggestion in writing, supported by affidavit, to order the record of proceedings “ to be transmitted to some other Court, (and of a different circuit, if the party applying shall so elect,) having jurisdiction in such cases.” But not necessarily to some other Court of the same circuit, even although the party should elect not to go out of it. The Judges may, in their discretion, order the
It has been contended, however, on behalf of the appellees, that as the motion to strike out the judgment w'as made during the term at which the judgment was rendered, and the case is still for trial, no appeal lies to this Court from the order of the Court below. But obviously there is nothing in this objection. The judgment was stricken out solely upon the ground, as it appears, that the Court had no jurisdiction of the cause, and consequently the record was remanded to the Court of Common Pleas whence it came. The Common Pleas having no jurisdiction over the cause, there is no Court, as the case now stands, to take cognizance of it. Until the order appealed from be reversed, no proceedings whatever can be had in the cause. The question involved being one of jurisdiction, and having been decided adversely to maintaining the proceedings in the Court below, it is preliminary to
The order appealed from will be reversed, and the cause remanded that the judgment be reinstated; and if the other causes assigned by the appellees for striking out the judgment have not been acted upon by the Court below, (as they do not appear to have been,) it will be competent for that Court, upon reinstating the judgment, to dispose of them as justice and right may require.
Judgment reversed and cause remanded.