Baltimore County Com'rs v. United Rys. & Elec. Co.

Decision Date22 March 1904
Citation57 A. 675,99 Md. 82
PartiesBALTIMORE COUNTY COM'RS et al. v. UNITED RYS. & ELECTRIC CO. et al.
CourtMaryland Court of Appeals

Appeal from Circuit Court, Baltimore County; N. Charles Burke Judge.

Action by Charles T. Cockey, Jr., against the county commissioners of Baltimore county, the United Railways & Electric Company and others. From an order obtained by the United Railways & Electric Company and another removing the cause to another court, the county commissioners and another appeal. Reversed.

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

Osborne I. Yellott and D.G. McIntosh, for appellants.

Elmer J. Cook and R.R. Boarman, for appellees.

BRISCOE J.

Charles T. Cockey, Jr., a resident of Baltimore county, brought a joint action in tort on the 9th day of September, 1903 against the county commissioners of Baltimore county, the West Arlington Improvement Company of Baltimore City, the United Railways & Electric Company of Baltimore, and the Western Maryland Railroad Company, corporations, to recover damages for injuries caused by the alleged negligent construction of certain drains and culverts by the defendants so as to divert the natural flow of the surface water, and to cause it to overflow and be discharged upon the plaintiff's property. The defendants appeared to the action, and pleaded the usual plea of "did not commit the wrongs alleged." The United Railways & Electric Company of Baltimore and the Western Maryland Railroad Company, two of the defendants, and the appellees in this case, filed separate suggestions and affidavits for the removal of the case, wherein it was alleged that "it cannot have a fair and impartial trial, and prays the court to order and direct the removal of the record of proceedings to some other court having jurisdiction in the case." On the 21st of December, 1903, the appellants, the county commissioners and West Arlington Improvement Company, filed objections to the removal of the case, stating that "the suggestion was not filed with their assent or on their behalf, and that they object to the removal of the case from the court on such suggestions." Subsequently, on the 29th day of December, 1903, the court below passed an order directing that the record of proceedings in the case be transmitted to the Baltimore City court for trial, and from this order an appeal has been taken.

There is but one question raised on the record, and it is substantially this: whether one of several codefendants in an action at law can have a case removed to another jurisdiction when the suggestion is made on behalf of only one, and the removal is resisted by the codefendants. The determination of the question rests upon the construction of section 8 of article 4 of the Constitution and section 102 of article 75 of the Code of Public General Laws, relating to the removal of cases. By section 8 of article 4 of the Constitution it is provided that "in all suits or actions at law, *** upon suggestion in writing under oath of either of the parties to the proceedings that such party cannot have a fair and impartial trial in the court in which the same may be pending, the said court shall order and direct the record of proceedings in such suit or action *** to be transmitted to some other court having jurisdiction in such case for trial." It is urged upon the part of the appellants that the construction of the words "either of the parties," "or such party," as contained in the Constitution, means "both parties where there are two, or all of the parties where there are more than two co-parties, and that the suggestion must be made the joint act of all before it can be said that the party has filed the suggestion." It is insisted, however, upon the part of the appellees that either party to the cause has the right of removal, and that "either of the parties" means "any of the parties," and that, where a suggestion for removal is made by one of several codefendants, it must be taken as made on behalf of all the persons constituting the party, plaintiffs or defendants, as the case may be, and this contention was sustained by the court below.

We cannot agree to the conclusion reached by the court below, or sanction its construction of the section of the Constitution here in...

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