Baltimore & O.R. Co. v. Waltemyer
| Decision Date | 20 December 1877 |
| Parties | THE BALTIMORE AND OHIO RAILROAD COMPANY v. F. G. F. WALTEMYER, use of JOHN T. ENSOR. |
| Court | Maryland Court of Appeals |
SECURITY FOR COSTS.
APPEAL from the Circuit Court of Baltimore County.
On the 15th September, 1874, suit was instituted by F. G. F Waltemyer, before Thomas J. English, a justice of the peace of Baltimore County, to recover sixty-five dollars damages for the loss of a cow, killed on the road of the appellant. "Judgment of non pros., plaintiff pay the costs," was rendered by the justice, from which an appeal was taken to the Circuit Court for Baltimore County.
The defendant, in accordance with the provisions of section 10 of Article 27 of the Code of Public General Laws, on March 7th 1876, filed a motion for rule security for costs on the plaintiff.
On May 6th, 1876, before this motion had been disposed of by the Court, and notwithstanding the failure of the plaintiff to give the security demanded, and the non-compliance on his part with the provisions of the Act of Assembly of 1867, ch 164, the trial of the cause proceeded, and a judgment was rendered in favor of the plaintiff for the full amount of his claim.
Subsequently a motion was filed by counsel for defendant to strike out the judgment, assigning reasons therefor, the principal reason relied on being that at the time the cause was tried in the Circuit Court there was a rule security for costs outstanding against the appellee and not complied with by him, and that the costs which had been incurred before the magistrate were not paid.
The motion was overruled; whereupon the appellant took this appeal.
The cause was argued before BARTOL, C.J., MILLER, STEWART and BOWIE, J.
J K. Cowan and J. A. Buchanan, for appellant.
John T. Ensor, for appellee.
This is an appeal from a judgment of the Circuit Court of Baltimore County, reversing a judgment of a justice of the peace.
Waltemyer, the appellee, sued the Baltimore and Ohio Rail Road Company in a plea of damages, by warrant issued on the 3rd of August, 1874, and returnable before a justice of the peace on the 11th instant.
The warrant was served on the 25th of August, 1874, the justice rendered a judgment of non pros., and that the plaintiff pay the costs, amounting to $3.50.
From this judgment the plaintiff prayed an appeal on the 3rd September, 1874, to the Circuit Court. The appeal was docketed in the Circuit Court, summons issued, and the appellee, the Baltimore and Ohio Rail Road Company, on the 7th of March, 1876, laid a rule security for costs on the appellant.
On the 16th May, 1876, the cause was tried before the Court, and the judgment below reversed, and judgment entered for the plaintiff below, for sixty-five dollars, with interest from date and costs.
On the 17th of May, 1876, the defendant below, the Baltimore and Ohio Rail Company, moved to strike out the judgment for various reasons assigned, and to be assigned, and filed affidavits in support of said reasons.
The principal reasons relied on are, that at the time the cause was tried in the Circuit Court, there was a rule security for costs outstanding and not complied with, and that the costs which had been incurred before the magistrate were not paid.
The docket entries contained in the record show the rule laid on the 7th of March before the trial, and do not show any compliance therewith.
The affidavits filed by the appellant to show the laying of the rule security for costs, and non-compliance therewith, and the non-payment of the costs which accrued before the justice, are not controverted.
It is contended on behalf of the appellant, that the action of the Circuit Court, in proceeding to trial and judgment under these circumstances, was an exercise of unwarranted authority,--an excess of jurisdiction, which authorizes this Court to review and reverse the judgment of the Circuit Court.
It needs no authority to sustain the position that if a Court of inferior jurisdiction assumes appellate power in cases beyond its authority, the judgment may be reviewed and reversed in this Court. Webster vs. Cockey, 9 Gill, 92; State vs. Mister, 5 Md., 11; Kinnear & Willis vs. Lee & Reynolds, 28 Md., 488; Mears vs. Remare, 33 Md., 249, 250; Bell vs. Jones, 10 Md., 331; Herzberg vs. Adams, 39 Md., 309.
Without intending to decide that such a rule can be laid in appeal cases, the omission to enforce a rule security for costs before going to trial can scarcely be regarded as an error affecting the jurisdiction of the...
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Knee v. Baltimore City Pass. Ry. Co.
... ... is as follows: "The court in which an action shall be, ... after a new trial has been ordered by the court of appeals, ... or by that court, shall have power to stay all further ... proceedings in such action, until all, or any of the costs, ... adjudged by the court of ... century, and, if questioned in the lower courts, it has never ... been brought to this court for its judgment. In Railroad ... Co. v. Waltemyer, 47 Md. 328, that act came before this ... court for the first time in 1877, but not as to its ... constitutionality,--that question not being ... ...