179 A. 512 | Md. | 1935
Scott Preston Dunnigan was hurt through the alleged negligent operation of an automobile by one Reese M. Bowman, and shortly died in consequence of his injury. He was survived by a widow and infant children. The tort-feasor having died, an action was brought in the Circuit Court for Harford County in the name of the State of Maryland, for the use of the surviving widow and infant children, against the duly appointed and qualified administrators of the tort-feasor, to recover damages for the death of Dunnigan. A declaration was filed with the institution of the action, and the defendants were summoned. An appearance for the defendants was entered *112 by an attorney, who filed the general issue plea that the intestate had not committed the wrong alleged. Some days later, the defendants in proper person filed a petition praying that the court pass an order striking out the appearance of the attorney and the plea on the ground that the attorney had acted without authority. The court passed an order on this petition setting the matter down for a hearing. The attorney filed an answer which asserted his appearance and plea were pursuant to the terms of his employment by the defendants. On the same day, but after this answer was filed, the plaintiff made a suggestion for removal, and the next day the court passed thereon its order which directed that the record be transmitted to the Circuit Court for Cecil County for trial. The record was so sent.
After the record had been received, the administrators, in proper person, filed in the Circuit Court for Cecil County a petition in which is set forth the controversy over the authority of the attorney to appear and plead for the defendants, and the removal of the action before the matter of representation had been determined, and the desire of the defendants to employ other counsel to appear for them in their capacity as the personal representatives of the alleged wrongdoer. The petition further stated that it was uncertain whether the court to which the action had been removed would be able to determine the matter of the right of the attorney to act for the defendants before the time for pleading by the defendants would expire, and requested an order of court extending the time for pleading. The Circuit Court for Cecil County passed the desired order, and extended the time for the defendants to file other pleadings to five days after a decision on the dispute of the right of the attorney to represent the defendants. Without waiting for this determination, the defendants, in proper person, filed a demurrer to the declaration.
No further proceeding was had until two months later when the court, on its own motion, passed an order remanding the action to the Circuit Court for Harford *113 County. The appeal brings up for review this order of the court.
1. The right of removal is conferred by article 4, section 8, of the Constitution of Maryland, and its denial or abridgement is ground for direct appeal. Griffin v. Leslie,
2. The nisi prius court of Cecil County was of the opinion that the right of removal from the Circuit Court for Harford County did not exist until the pleadings had raised an issue of fact to be submitted to the jury. In this ruling there was error. The right of removal is liberally construed. Price v. Nesbitt,
There is nothing in the constitutional provision to support the narrow construction that the cause must have progressed in the pleadings to an issue of fact before the court may pass an order authorizing the removal. Constitution, art. 4, sec. 8. The statute, which was passed in pursuance of the mandate of the Constitution that the General Assembly should make such modification of existing law as might be necessary to regulate and give force to the provision, is, with respect to the right, in the words of the Constitution. Code, art. 75, sec. 109. The Legislature, however, has no power to abridge the constitutional guaranty. Gardner v. State,
The doctrine of Griffin v. Leslie, supra, has since generally prevailed in practice, and is the accepted rule of this court, subject to the qualification that the present constitutional provision does not require the suggestion for removal to be made before or during the term in which issues may be joined, nor limit the removal to an adjoining county. Niles onConstitutional Law, pp. 496, 525; Const. art. 4, sec. 8.
The modification of the Constitution of 1851 by the constitutional provisions now in effect does not relate to the question now under consideration, and, therefore, does not lessen the authority and decisive effect of Griffin v. Leslie, supra,
with respect to the problem here presented. Price v. Nesbitt,
In the nisi prius court of Cecil County, the cases of Cookev. Cooke (1875)
The question at bar in the pending appeal was not before the court in Cooke v. Cooke, supra, and was neither discussed nor considered in the opinion. The sole question was whether an equity cause had the same status as an action at law with reference to the right of removal. In determining that it did not, the appellate court was careful to point out, in the absence of an express bestowal of the privilege, the fundamental reasons which imposed this restriction upon a cause in equity; and the explicit limitation of the privilege created by the Constitution when it confined the right to an issue in equity. In this connection, the appellate court remarked: "There certainly *116
exists no necessity for the adoption of the construction insisted on, for an appeal lies from the judgment of every equity court upon questions of fact as well as of law, by which a corrupt, or prejudiced, as well as a mistaken judgment can be speedily corrected. Again, if a party mistrusts the judgment of the court upon the facts, he may have issues framed and submitted to a jury for trial, and then if there be sufficient prejudice against him in the community, he may safely make the suggestion and affidavit, and have the case removed. For that the clause in question specially provides."
The other appeal, of Schaible v. Home Ins. Co., supra, was taken in a case where the action at law was brought under the Speedy Judgment Act of Baltimore County (Acts of 1912, c. 385), and a motion for a judgment by default was filed. Before this motion was disposed of the defendant filed a suggestion for removal. The appellate court applied the reasoning adopted by the court in Northern Central R. Co. v. Rutledge,
Finding no warrant for its action, the order of the Circuit Court for Cecil County remanding the record to Harford County was in excess of its power, and in denial of the exercise by the defendants of their absolute right of removal. 2 Poe's Pl. Pr., sec. 99.
Order of Circuit Court for Cecil County reversed, with thecosts of this appeal to the appellant, and cause remanded. *117