Atlantic & G.C. Consol. Coal Co. v. Maryland Coal Co.

• Decision Date: 20 November 1885
• Citation: 1 A. 878,64 Md. 302
• Parties: ATLANTIC & GEORGE'S CREEK CONSOLIDATED COAL CO. OF BALTIMORE v. MARYLAND COAL CO.
• Court: Maryland Court of Appeals

1 A. 878

64 Md. 302

ATLANTIC & GEORGE'S CREEK CONSOLIDATED COAL CO. OF BALTIMORE v. MARYLAND COAL CO.

Court of Appeals of Maryland

November 20, 1885

Appeal from circuit court, Washington county.

Josiah H. Gordon, Robert H. Gordon, Ferd. Williams, and Wm. Brace, for appellant.

Wm. Walsh and S. A. Cox, for appellee.

IRVING, J.

This cause originated in Alleghany county, and was, upon the suggestion of the appellee, who was plaintiff below, removed to Washington county. In the circuit court for Washington county, the appellant, who was defendant below, asked for the removal of the cause from that court to some other court of the same circuit, and the court, on the fourteenth of May, 1885, passed an order for its removal to Garrett county. On the third day of June, 1885, before the record had actually been transmitted to the circuit court for Garrett county, the circuit court for Washington county changed its order, and directed the record to be transmitted to the circuit court for Carroll county. This change in the order was made during the same term at which the order for removal was passed. On the seventeenth day of June, during the same term, the appellant filed a petition asking the court to strike out "Carroll," and reinsert "Garrett," county in the order for removal. This petition the court dismissed, and overruled the motion to strike out "Carroll" and reinsert "Garrett." The appellants have appealed from the order of the court, changing the order for removal by striking out "Garrett," and inserting "Carroll;" and also from the order dismissing their petition to restore the order to its original form.

In the original suggestion of the appellant for a removal from the circuit court of Washington county, the election was made that the removal should be to some other court in the same circuit; and as there was but one other court in the circuit to which it could go, viz., that of Garrett county, it was equivalent to an election on the part of the appellant of that county in which to have the case tried. In Weiskittle's Case, 58 Md. 155, this court decided that the right to elect whether a cause should remain in the circuit or be removed from it, (which the constitution of 1869 gave to the person asking for removal from the court in which the case was pending,) was taken away by the amendment to the constitution adopted in 1874, and no longer existed. In first directing the record, therefore, to be transmitted to the circuit court for Garrett county, the court was not influenced by the election, but exercised the discretion which belonged to the court. The right to select the precise tribunal in which the case should be tried was never given to the party asking removal, but has always been the province of the court. Having the discretion as to what court the case shall be sent, so long as the cause remains under the control of the court, and at...