Gambrill v. Parker
| Citation | 31 Md. 1 |
| Parties | WILLIAM B. GAMBRILL, and Others v. JOSEPH M. PARKER, and Others. |
| Decision Date | 10 June 1869 |
| Court | Court of Appeals of Maryland |
Appeal from the Circuit Court for Prince George's County.
At the April Term, 1868, of the Circuit Court for Prince George's County, this action was pending on the trial docket between the appellants as plaintiffs, and the appellees as defendants. The cause was not tried at that term, but was regularly continued. The clerk of the court issued a summons, directed to the Sheriff of Baltimore City commanding him to summon William B. Gambrill, to testify for the plaintiffs in this action, returnable to the June Term, 1868, of said court, the said June Term 1868, being an intermediate non-jury term, provided for by the new Constitution.
It does not appear, nor was it alleged, that the said summons was issued at the instance of, or by the order of the plaintiffs or their attorney. The witness appeared in obedience to the summons, and the plaintiffs moved the court to quash the same for the following reasons:
1. Because by Art. 4, sec. 21, of the Constitution of the State no jurors can be summoned for the trial of cases at any intermediate term.
2. Because the court have no power under said Article and section of the Constitution, to pass any rule requiring the issuing of summons for witnesses to such term.
3 Because the following rules of said court, as amended at the April Term, 1868, of said court, do not authorize the issuing of any such summons for witnesses.
First Rule. There shall be two terms of this court as at present to which jurors shall be summoned, to be held on the first Monday in April, and the first Monday in October in each year.
Second Rule. There shall be as required by the Constitution, two intermediate terms, to which jurors shall not be summoned, to be held on the third Monday in June, and the third Monday in January in each year.
Third Rule. Suits may be brought, and process issued to the said non-jury terms as fully in every respect as to the regular jury terms.
Fourth Rule. Suits brought to one term, either jury or non-jury, shall stand for trial at the succeeding jury or non-jury term respectively.
4. Because the court on the return of summoned to such a summons, has no right, under the Constitution or rules aforesaid, to compel the attendance of said witness by attachment or otherwise.
5 Because the issuing of said summons, and requiring witnesses to attend at an intermediate term, when no jury trial can be had, will inflict great inconvenience and expense to witnesses so summoned.
The court, without argument, overruled the said reasons and motion, and refused to quash the summons.
From the judgment of the court overruling this motion, the plaintiffs below appealed.
The cause was argued before BARTOL, C.J., STEWART, GRASON and ALVEY, JJ.
Thomas F. Bowie, for the appellants:
1. The issuing of the summons by the clerk, was an extra official act, and the summons itself was therefore void.
2. The third and fourth rules of the court below, do not warrant or authorize the issuing of summonses for witnesses to attend at non-jury terms.
3. If those rules are capable of such a construction, they are repugnant to the true intent of Art. 4, sec. 21, of the Constitution of the State, and are themselves void.
4. An appeal properly lies in this cause from the refusal to quash the summons per se, and the appellants were not bound to wait until the rendition of the judgment on the final trial of the cause.
On the fourth point he cited Ringgold's Case, 1 Bland, 5; Thompson v. McKim, 6 H. & J. 302; Code of Pub. Gen. Laws, Art. 5, sec. 3; Queen v. State, 5 H. & J. 232; Hall v. State, 12 G. & J. 329; Bruce v. Cook, 6 G. & J. 345; Negro Bell v. Jones, 10 Md. 322; Balt. & Havre de Grace Turnpike Co. v. N. C. R. R. Co., 15 Md. 193; Swann v. Cumberland, 8 Gill, 152; Waters v. Duvall, 6 G. & J. 76; Boyle v. Robinson, 7 H. & J. 200.
No counsel appeared for the appellees.
The refusal of the court below to grant the motion of the appellants to quash the summons issued by the clerk for William B. Gambrill, a witness, to testify for the plaintiffs, was a mere interlocutory proceeding in the progress of the case, entirely within the discretion of the court, and certainly not such final judgment, or determination, from which an appeal will lie to this court.
The appeal, therefore, must be dismissed.
As the record, however, has been brought before us for the purpose of obtaining the judgment of this court upon the questions presented, some of which are of practical importance, and have been elaborately argued by the counsel for the appellants, we will take occasion to express, briefly, our...
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