Cooke v. Cooke

• Decision Date: 09 February 1875
• Citation: 41 Md. 362
• Parties: ISRAEL COOKE, and others v. HARRIET COOKE.
• Court: Maryland Court of Appeals

41 Md. 362

ISRAEL COOKE, and others v. HARRIET COOKE.

Court of Appeals of Maryland

February 9, 1875

APPEAL from the Circuit Court for Baltimore County, in Equity.

The bill of complaint in this case was filed by the appellee who claimed to be a judgment creditor of the appellant, Israel Cooke. Its object was to have a deed from the said Israel and the appellant Arietta, his wife, to the appellant Adolphus, their son, set aside; and a deed from Joseph S Cleaveland and wife, to the said Arietta, declared to be held in trust by her for the use and benefit of the said Israel and his creditors. The defendants, Israel and Arietta severally made suggestion in writing, supported by affidavit, that they believed that they could not have a fair and impartial trial in the Circuit Court for Baltimore county, and prayed that the record of proceedings might be removed to a Court of some adjoining Circuit for trial. The Court, (YELLOTT, J.,) passed an order refusing the application for removal, and overruling and dismissing the motion. From this order the defendants appealed.

The cause was argued before STEWART, MILLER, ALVEY and ROBINSON, J.

N.M. Pusey and Wm. Pinkney Whyte, for the appellant.

By section 8 of Article 4 of the Constitution of 1867, it is made the duty of the Judge or Judges of any Court of this State, except the Court of Appeals, upon suggestion in writing, supported by affidavit, to order and direct the record of "proceedings in any suit or action, issue or petition, presentment or indictment" pending in such Court, to be transmitted to some other Court, &c.

Now, if the Judge of the Circuit Court of Baltimore county, sitting in equity, is the Judge of any Court of this State, except the Court of Appeals, (and we suppose this will not be questioned,) then, upon the filing of the suggestion for removal, supported by affidavit, it became his duty (Kimball vs. Harman & Burch, et al, 34 Md., 401, 403,) to order and direct the record of proceedings to be transmitted, &c., unless the words "proceedings in any suit or action, issue or petition," as used in this section, mean suit or action, issue or petition in a Court of Law, and not also in a Court of Equity, and there is certainly nothing in the section to warrant such a construction.

By comparing the 28th section of Art. 4 of the Constitution of 1851 with the 9th section of Art. 4, Constitution of 1864, it will appear that there is a very great difference in the phraseology of the two sections, and we submit, it will also become evident that it was the intention of the framers of the Constitution of 1864 to enlarge the right of removal. They gave it to any party to " any suit or action, issue or petition, presentment or indictment," and did not restrict it, as by the Constitution of 1851, to "all suits or actions at law, issues from the Orphans' Court, or from any Court sitting in equity," &c.

The fact that the framers of the Constitution of 1864, as well as those of the Constitution of 1867, excepted the Judges of the Court of Appeals alone, from the obligation to order and direct a record of the proceedings to be transmitted, &c., shows conclusively that they intended the Judges of every other Court should do so, (the other constitutional provisions having been complied with,) and they had established Courts of Equity as well as Courts of Law.

This Court has always given a liberal construction to these constitutional provisions, relative to the removal of cases. Queen vs. Neale, 3 H. & J., 158; Negro Jerry, et al. vs. Townshend, 2 Md., 274; Griffin vs. Leslie, 20 Md., 15.

The right of removal is given to any party to " any suit or action, issue or petition." A "suit" is the prosecution of some demand in a Court of Justice. Cohens vs. Virginia, 6 Wheaton, 407; Weston, et al. vs. City Council of Charleston, 2 Peters, 464; 3 Story on Constitution, sec. 1719.

And unless it can be successfully maintained that a Court of Equity is not comprehended in the term "a Court of Justice," then suit is as proper a designation of a proceeding in Equity as at law. The word suit is used by writers on Equity Law as the proper designation of proceedings in Equity. Story on Equity Pleading, sec. 7, ch. 2, and is used in the same manner in Art. 16, of the Code.

The Court of Appeals has always used the word "suit" as applying to proceedings in both law and equity. In just such a case, being proceedings growing out of a bill in Equity, the Court say, "the corporation ought also to have been made a party to the suit. The bill does not allege that it has been dissolved, nor does it pray for a dissolution." Fiery, et als. vs. Emmert, et al., 36 Md., 475. It seems clear that "suit" is general in its character, and applies as well to "chancery suits" as "law suits." Didier vs. Davison, 10 Paige Ch. Rep., 516, 517.

The words "issue" and "petition," when used as in this section of the Constitution without words to restrict their meaning, are as applicable to equity proceedings as to those at law.

An issue is a material point issuing out of the allegations or pleadings of the plaintiff and defendant. A cause is at issue in a Court of law when the parties have arrived at that stage of their pleadings, as that some specific point or matter is affirmed on the one side, and denied on the other. And a cause is at issue in a Court of Equity when the replication is in, and the pleadings are closed. Story on Equity Pleading, sec. 886; Adams' Equity, 347, marginal.

In both Courts a cause is at issue, or there is an issue, when some matter of fact or law is averred on the one side and denied on the other. A proceeding in a Court of Equity is commenced by "filing a bill which is in the nature of a petition." So far as by the Act of 1868, ch. 180, the Legislature undertook to restrain or confine this constitutional right of removal of cases, that act is unconstitutional. The State vs. Dashiell, 6 H. & J., 268; Negro Jerry, et al. vs. Townshend, 2 Md., 274; Griffin vs. Leslie, 20 Md., 15; Price, et al. vs. Nesbitt, et al., 29 Md., 263.

Arthur W. Machen, for the appellee.

MILLER J., delivered the opinion of the Court.

The question presented by this appeal is whether an equity cause can be removed for trial, under the provision of the Constitution on that subject. That provision is (Cons. of 1867, Art. 4, sec. 8,) that "the Judge or Judges of any Court of this State, except the Court of Appeals, shall order and direct the record of proceedings in any suit or action, issue or petition, presentment or indictment pending in such Court, to be transmitted to some other Court, (and of a different circuit, if the party applying shall so elect,) having jurisdiction in such cases, whenever any party to such cause, or the counsel of any party shall make a suggestion in writing, supported by the affidavit of such party or his counsel, or other proper evidence, that the party cannot have a fair or impartial trial in the Court in which such suit or action, issue or petition, presentment or indictment is pending, or when the Judges of said Court shall be disqualified under the provisions of this Constitution to sit in any such suit, action, issue or petition, presentment or indictment; and the General Assembly shall make such modifications of existing law as may be necessary to regulate and give force to this provision."

The power of the Courts to remove a cause to an adjoining county for trial, when justice required it, existed at common law as an acknowledged, if not an essential part of their ordinary common law jurisdiction. Price vs. The State, 8 Gill, 311; Negro Jerry vs Townshend, 2 Md., 278. But the privilege has been secured and placed upon a more sure and certain foundation by constitutional provisions embodied in all our State Constitutions from 1806 to the present time. The object of these provisions, as of all laws, for the removal of causes from one venue to another is to secure a fair and impartial trial, and promote the ends of justice by getting rid of the influence of some local prejudice which might operate detrimentally upon the interests or rights of one or other of the parties to the suit. Negro Jerry, et al. vs. Townshend, 2 Md., 278; Wright vs. Hamner, 5 Md., 370; Griffin vs. Leslie, 20 Md., 18. In this view the privilege is most undoubtedly a valuable one, and whenever it has come under consideration by the Courts it has been construed liberally to secure this object, and hence it has been held that under the power to provide "further remedies," and to "regulate and give force" to the provision, the Legislature may enlarge but cannot restrict the exercise of the right. State vs. Dashiell, 6 H. & J., 268; Price vs. Nesbitt, 20 Md., 18; 29 Md., 266. These constitutional provisions have varied in some particulars, and the language employed to secure the right has been in some respects different. Thus in the Constitution of 1806 (Act of 1804, ch. 55, sec. 2,) the removal was to be to some Court "within the" judicial "district," and the suggestion for removal was required to be made before or during the term at which issue was joined. In that of 1851 (Art. 4, sec. 28,) the removal was to be "to the Court of an adjoining county," and in civil cases was confined to an adjoining county within the judicial Circuit, except as to the City of Baltimore where the removal may be to an adjoining county," and there was the same proviso as to the time when the suggestion was to be made. In that of 1864 (Art. 4, sec. 9,) the restriction as to the time of making the suggestion was dropped, and the limits of removal...