41 Md. 186 | Md. | 1874
delivered the opinion of the Court.
The principal question on this appeal is, whether the Circuit Court for Talbot county, by the first suggestion made for removal by the defendant, and the order thereon directing the record to be transmitted to the Circuit Court for Caroline county, so far ceased to have jurisdiction over the cause as to preclude it from exercising the power of rescinding its order and allowing the suggestion for removal to be withdrawn, and the cause reinstated for trial; for if that order for removal was rightfully rescinded, there is no question as to the legality of the subsequent removal to the Circuit Court for Anne Arundel county, and from thence to the Circuit Court for Dorchester county, from whose action in regard to its jurisdiction over the cause this appeal is taken.
It has been suggested in argument, that the order directing the transmission of the record to the Circuit Court for Caroline county, was not effective, because not signed by the Judges of the Circuit Court for Talbot county. But this suggestion is not well founded. There is nothing in the Constitution or the law to require such order to be signed by the Judges. It is, like all other orders or rules in common law proceedings, evidenced as a regular entry in the cause made under the authority of the Court, by the attestation or certificate of the Clerk. The order may be
But notwithstanding the order was in all respects formal and valid, we think there should be no question of the right and power of the Court to rescind that order at the instance of the party upon whose application it was made, under the circumstances disclosed in the record.
The power of removal is intended as a privilege of the party making the suggestion for the order, and, like any other privilege, it can be waived, if the right of waiver be exercised under proper circumstances. Here, the motion for a rescission of the order and for leave to withdraw the suggestion for removal was made at the same term at which the order was passed, and while the record still remained in the Court passing the order; and this being the case, the principle is too well established to require the citation of authorities to support it, and is of every day’s application in the practice of the Courts of this State, and elsewhere, that the Court retains power over its own judgments and orders, in both civil and criminal cases, during the term at which they are entered or made, and will, during that time, set them aside, or change or modify them, as circumstances may require. This being an undeniable proposition, we are unable to perceive any good reason why it should not apply to orders like that in question in this case, as well as to any other orders or judgments that may be entered by the Court. The only reason suggested for the distinction is, that by the making of the order for removal, all jurisdiction and power over the cause pass from the Court in which the order is made, and become vested in the Court to which the record is ordered to be transmitted. But it is an error to suppose that all jurisdiction and control of the Court over the cause 'and the record, cease the moment of the passage of the order for removal. From necessity it must retain power to determine as to what constitutes the record, and to enforce
There is nothing in the case of Manly vs. The State, 7 Md., 135, inconsistent with this view of the subject. In that case no order for removal had passed when the application to withdraw the suggestion was made, and it was deemed to be clear, that the mere suggestion and affidavit of the party did not oust the Court of jurisdiction over the indictment, and in that state of the case the prisoner had the light to withdraw his suggestion for removal. Nor does the case of Brown vs. Gilmor, 8 Md., 322, at all affect the question. There the order of removal from the High Court of Chancery to the Superior Court of Baltimore City was passed only two days before the former Court ceased to exist, by the Constitution of 1851, and the question was upon the effect of a nisi order of ratification passed by the Chancellor before the order of removal, and of the final order of ratification passed by the Superior Court after actual removal of the cause; and the Court determined .that the removal was proper, and that both orders of ratification were regularly passed. The question there was quite different from that presented in this case.
There seems to have been some doubt entertained, whether, after an order for removal of a cause had passed, the Court passing the order could entertain a motion to strike out the order and reinstate the cause, and to remove all such doubt the Act of 1874, chapter 94, was passed. By that Act the power in the Court is fully affirmed ; but its provisions do not apply to this case, as the order in question was made before the Act was passed.
The cause was properly in the Circuit Court for Dorchester county, and while that Court rightly refused to dismiss the case upon the motion of the defendants, but
Order reversed, and cause remanded.
