State v. Shipley

Citation57 A. 12,98 Md. 657
PartiesSTATE v. SHIPLEY.
Decision Date19 February 1904
CourtCourt of Appeals of Maryland

Appeals from Baltimore City Court, J. Upshur Dennis, Judge.

Action by the state of Maryland, to the use of Charles L. Gemundt against Charles Shipley. From a judgment for defendant on a plea to the jurisdiction, plaintiff appeals. Affirmed.

Argued before McSHERRY, C.J., and FOWLER, BRISCOE, BOYD, PAGE PEARCE, SCHMUCKER, and JONES, JJ.

John C Tolson, for the State.

Robert Lee Slingluff and Thos. G. Hayes, for appellees.

SCHMUCKER J.

An infant son of the equitable appellant was killed, in March 1902, by the caving in of a sand bank located on land owned by the appellee lying in Baltimore City. This suit was instituted to the use of the appellant, in the Baltimore city court, to recover damages for the loss which he sustained by the death of his son. The appellee was sought to be held liable for the injury because of his alleged negligence in allowing the sand bank to be in a dangerous condition on an open lot, which he permitted the children of the neighborhood to use as a playground. The appellee, having been summoned, appeared to the action in propria persona, and filed a plea to the jurisdiction, averring that he was not a resident of Baltimore City, and neither carried on any regular business, nor was habitually engaged in any avocation or employment, in that city, but that he resided in Frederick county. This plea was verified by a proper affidavit. The plaintiff replied, traversing the plea, and issue was joined on the replication. After the issue had been thus made up, but before it had come to a hearing in the court below, the appellee appeared to the case by counsel, who filed an order of appearance in the following form: "Enter my appearance for the defendant Charles Shipley in the above case." The parties to the case then agreed to try the issue made up on the plea to the jurisdiction before the court, without the intervention of a jury, and they went to trial before the court upon that issue alone. The uncontradicted evidence of the defendant at the trial of the issue of jurisdiction was that he had formerly carried on the real estate and collecting business in Baltimore City, but he had given up his license as a real estate broker five or six years ago, and that he had moved his residence to Frederick county, near Thurmont, in 1891. That he had not carried on any business or been engaged in any habitual avocation or undertaking of any kind in Baltimore City for the last four or five years. That he owned considerable real estate in Baltimore City, and that he collected his own rents and ground rents, but he had done no other business in that city for four or five years than to attend to his own private affairs, with the one exception of collecting the entire rent from a ground rent owned by him and another person as tenants in common. In that case he collected the entire rent and paid his co-tenant one-half of it, less a commission for its collection. While he was engaged in the real estate, brokerage, and collecting business in Baltimore, he used a room in one of his own houses, No. 217 Courtland street, as an office, and he had a sign over the outside door of the house, and also one over the door of the room used as his office. The signs read "Charles Shipley, Collecting and Conveyancing." He still uses that room for conducting his private business, and his son there assists him in collecting his rents. He had forgotten all about these signs, and had not noticed them for years, until his attorney, since the institution of this suit, called his attention to the fact that they were still up. He generally visits the office when he comes to town, to see what is doing. The bills which he sends out to his tenants for his rents are made out on printed billheads bearing his name and his address at No. 217 Courtland street. He further testified that he was not a registered voter, and was not registered in Baltimore City or in Frederick county. Upon this uncontradicted state of facts the court below ruled, as matter of law, that the defendant was not to be regarded as residing or carrying on any regular business or habitually engaged in any avocation or employment in the city of Baltimore, and directed a verdict to be entered in his favor. The plaintiff excepted to the court's ruling on the law, and, the verdict and judgment having been entered against him, he took the present appeal.

The learned judge of the city court was correct in his ruling upon the law of the case. The appellee had resided in Frederick county for more than 10 years prior to the institution of the suit, and for the latter half of that time he had not been engaged in any kind of business or employment in Baltimore City other than attending to his own private affairs. The collection by him of his co-tenant's share of one ground rent did not constitute the carrying on of a business; nor did the fact that he continued to transact his private affairs, with the assistance of his son, from the same room, in his own house on Courtland street, in which he had formerly carried on the real estate and collecting business. The circumstances that when he retired from business he failed to take down the signs which had been used in connection with the business is not material to this case. That fact alone, with others of a similar nature, might tend to prove that he had held himself out to the public as still engaged in the business, and might confer rights upon one who had acted to his own prejudice in reliance upon such representations, but no issue of that character could rise in the present suit for damages, even if it were before us upon its merits. The regular business or habitual avocation or employment contemplated by section 132 of article 75 of the Code, which renders the person engaged therein liable to be sued in the county in which it is carried on, is a fixed occupation connected with some of the branches of trade industry, or commerce, or the continuous pursuit of some calling or profession such as is ordinarily engaged in as a means of livelihood or for the purpose of gain or profit. It does not consist of the mere transaction of one's own private affairs. Nor does the making of a single transaction with another person in the line of a particular business constitute a carrying on of that business. The expression "carry on business" was thus construed when used in section 60 of the statute of 9 & 10 Victoria, c. 95, where it was employed, as it is in the section above referred to of our Code, to define the jurisdiction in which a defendant might be sued. Shiels v. Gt. Northern Railway Co., 30 L.J.Q.B. 331. In Smith v. Anderson, L.R. 15 Chy.Div. 258, Jessel, M.R.,...

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