Blick v. Cockins
| Decision Date | 13 December 1917 |
| Docket Number | 73,85,86. |
| Citation | 102 A. 1022,131 Md. 625 |
| Parties | BLICK v. COCKINS (three cases). |
| Court | Maryland Court of Appeals |
Appeal from Circuit Court, Anne Arundel County; Jas. R. Brashears Judge.
Appeal from Baltimore Court of Common Pleas; Morris A. Soper, Judge.
Appeal from Superior Court of Baltimore City; Morris A. Soper Judge.
"To be officially reported."
Two actions, one by James M. Cockins against Carroll Bates Blick and the other by Blick against Cockins. Judgment and order were adverse to Blick, and he brings error and appeals. Assignment dismissed; judgment and order affirmed.
Argued before BOYD, C.J., and BURKE, THOMAS, URNER, STOCKBRIDGE, and CONSTABLE, JJ.
William J. Kennedy, of Baltimore, for appellant.
Louis J. Burger and George Weems Williams, both of Baltimore (L Vernon Miller, of Baltimore, on the brief), for appellee.
The appellee sued the appellant in the circuit court for St. Mary's county to recover a certain balance of principal and interest claimed to be due on two promissory notes set forth in the declaration. Upon the application of the plaintiff, the case was removed for trial to the circuit court for Anne Arundel county. In that court the defendant filed a suggestion and affidavit for removal, whereupon an order was passed removing the case to the court of common pleas of Baltimore City. At the trial of the case in the court to which it was thus finally removed, the defendant proposed that a verdict be directed in his favor on the ground that there was no evidence legally sufficient to overcome the bar of the statute of limitations which he had pleaded. The trial court refused to grant such an instruction. During a recess which occurred in the course of the trial in the court of common pleas, the plaintiff was served with a writ of summons in a suit which the defendant had entered against him in the superior court of Baltimore City. The writ in that case was quashed, on motion, because the person sought to be affected by the process was a nonresident of Maryland and at the time of the service of the writ was in this state solely for the purpose of prosecuting and testifying in his suit, then being tried, in the court of common pleas. The appellant seeks to have reviewed, under a writ of error, the action of the circuit court for Anne Arundel county in designating, against his objection, the court of common pleas of Baltimore City as the tribunal to which the suit pending against him should be transferred on his application for its removal. By an appeal from the judgment rendered against him in the court of common pleas he has brought up for review the refusal of the court, to which he excepted, to instruct the jury that recovery was barred by limitations. Another appeal questions the propriety of the action of the superior court of Baltimore City in quashing the writ served upon the nonresident appellee, in the appellant's suit against him, while he was present as a suitor in this jurisdiction. The three appeals were argued together, and we shall rule in one opinion upon the questions they present.
The order of the circuit court for Anne Arundel county transferring the appellee's suit against the appellant to another court for trial was passed in pursuance of the appellant's own application for a removal, and the designation of the court of common pleas of Baltimore City as the tribunal to which the case should be sent was made in the exercise of an ample discretion conferred by the Constitution of the state. Const. art. 4, § 8; Weiskittle v. State, 58 Md. 155. In A. & George's Creek Consol. Coal Co. v. Md. Coal Co., 64 Md. 302, 1 A. 878, an appeal from an order changing, before transmission of the record, the tribunal to which the case should be transferred, on an application for removal, was dismissed on the ground that the matter was within the discretion of the lower court and therefore not reviewable. It is urged in the present case that the action of the circuit court for Anne Arundel county in directing the case to be sent to the court of common pleas of Baltimore City was an abuse of discretion, because the selection of the latter court was made in compliance with the request of the appellee, and against the appellant's protest, and because the suit had originally been brought in one of the Baltimore City courts where a judgment of non pros was entered, upon the defendant's motion, on account of his not residing and being amenable to suit in that jurisdiction. These objections are clearly inconclusive. It appears from the record that the appellant's proposal for the removal of the case from the circuit court for Anne Arundel county was made on the day assigned for its trial in that court, and that the appellee, who had come from his home in California to be present and testify at the trial, requested the court, through his counsel, to send the case to one of the courts of Baltimore City, as he would thus be enabled to have the case tried at a very early date and be relieved of the trouble and expense of making a second visit to Maryland for the trial. Under such circumstances, the action complained of was a manifestly fair and sound exercise of judicial discretion.
One of the promissory notes sued on, as signed by the appellant, is in the following form:
The collateral agreement in the note included also a power of attorney to the payee to sell the collateral securities "on the nonperformance of the above promise" and without giving the maker "any notice or making any demand of payment." There was also a provision that the pledged securities might, from time to time, be exchanged for others by mutual consent, and that, if the maker of the note should incur any other liability to the payee, the proceeds of the securities held as collateral should be likewise applicable at his election to any such obligations. A subsequent loan of $2,000 was made by the appellee to the appellant, for which the latter gave his promissory note dated July 12, 1909, and payable one year after date. Interest was paid on the first note to December 9, 1910, and on the second to July 12, 1912; the payments being made at regular annual periods accounting from the respective dates of the notes. Demand for the payment of the principal of the notes, and the interest in arrears, was made on May 1, 1915. Upon default of payment, and after further demands and due notice, the collateral securities referred to were sold for the sum of $2,208, and the proceeds applied to the payment in full of the principal of the $2,000 note and to the reduction of the principal of the $2,250 note to the extent of a credit of $208.
In the pending suit for the balance of the principal of the one note, and for the interest in arrears on both, the only exception reserved is to the refusal of instructions that the plaintiff's cause of action accrued more than three years before the suit, and that there was no legally sufficient evidence of a new promise, acknowledgment, or partial payment effective to remove the bar of limitations, and that the verdict should therefore be for the defendant. The prayers thus offered and rejected were based upon the theory that the $2,250 note being payable on demand, and the $2,000 note one year after date, the first was due immediately upon its delivery in 1907, and the second matured according to its terms in 1910, and that neither the interest payments, the last of which occurred in 1912, nor the application of the proceeds of the collateral securities, though made in 1915, could have the effect of precluding the defense of limitations to the suit brought on the notes in 1916.
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