Gittings v. State

• Decision Date: 12 January 1871
• Citation: 33 Md. 458
• Parties: JOHN S. GITTINGS v. THE STATE OF MARYLAND, Use of Henrietta Ockerme.
• Court: Maryland Court of Appeals

33 Md. 458

JOHN S. GITTINGS v. THE STATE OF MARYLAND, Use of Henrietta Ockerme.

Court of Appeals of Maryland

Jan. 12, 1871

Appeal from the Court of Common Pleas of Baltimore City.

The cause was argued before BARTOL, C.J., BRENT, MAULSBY, MILLER and ALVEY, JJ.

George H. Williams, for the appellant.

The Court of Common Pleas had no jurisdiction over the appellant as he was a resident of Baltimore County. Code of Pub. Gen Laws, Art. 75, sec. 87. And the defense of non-residence was properly raised by a motion for a judgment of non pros., and ought to have been decided by the court. Hoffman v. Prout, 4 Har. & McH. 165.

A replication to a motion, a matter always addressed to a court, is without precedent, as is also the submission of such a motion to a jury for their verdict.

The inviolable right of the plaintiff to a trial by jury is preserved to him in the county where the defendant resides and is not destroyed nor interfered with by confining him to that jurisdiction; and it is a novelty for a court to permit a jury to say whether it has or has not jurisdiction, either over the person of a defendant or the subject-matter of a suit.

The order appealed from was a proper subject for appeal, like an order removing a cause to an adjoining county-- Wright v. Hamner, 5 Md. 370; or an order refusing to remove a cause-- Price v. Nesbitt, 29 Md. 263; or an order remanding a cause after it has been removed-- State v. Shillinger, 6 Md. 449.

C. D. McFarland, for the appellee.

The appeal should be dismissed, for an appeal will not lie until a final decision in the court below, which concludes the rights of the parties to the action, and which prohibits the party appealing from further prosecuting or defending the suit. Evans' Pr. 557; Boteler v. State, 7 G. & J. 112; Wheeler v. State, 7 Gill, 33; Welch v. Davis, 7 Gill, 366; Green v. Hamilton, 16 Md. 328; Hazelhurst v. Morris, 28 Md. 71; Smithson v. U.S. Tel. Co., 29 Md. 165.

The case remains on the docket of the court below for trial. The order appealed from was not, therefore, a finality.

If the appeal were properly taken, the order appealed from should be affirmed. Constitution, Art. 15, sec. 6. Either party is entitled to a jury trial of the matters of fact contained in a motion to quash an attachment, under the Act of 1864, ch. 306. Howard v. Oppenheimer, 25 Md. 364.

The Code of Public Gen. Laws, Art. 75, sec. 87, provides, that "no person shall be sued out of the county in which he resides, until the sheriff or coroner of the county in which he resides shall have returned a non est on a summons issued in such county." The appellant made a motion for a non pros., based on the allegation that he did not reside in the City of Baltimore, when the writ issued. This allegation was denied by the appellee. An issue was joined upon the matters alleged in the motion, which is in the nature of a plea in abatement, being an objection to the jurisdiction of the court. Sim v. Deakins, 2 H. & McH. 46; Bryden v. Taylor, 2 H. & J. 398; Carroll v. Tyler, 2 H. & J. 57; Field v. Adreon, 7 Md. 209; Fouke v. Flemming, 13 Md. 407; Dorsey v. Kyle, 30 Md. 518.

Residence is a question of fact for the jury. Union Bank v. Kerr, 7 Md. 88; Risewick v. Davis, 19 Md. 82; Lyman v. Fiske, 17 Pick. 235.

Miller J., delivered the opinion of the court.

The appellant was sued in this action in Baltimore City, and, wishing to avail himself of the provision of the Code, Art. 75, sec. 87, that "no person shall be sued out of the county in which he resides," until after a return of non est on a summons in that county, moved for a judgment of non pros. on that ground, and supported the motion by his affidavit, that, at the time of bringing this suit, he was and still is a resident of Baltimore County. The plaintiff filed a replication to this motion, denying its allegations, and applied for a jury trial of the issue thus presented. The court, thereupon, passed an order granting the plaintiff's application, and directing issues to be framed on the matters of fact alleged in said motion, for determination by a jury. From this order the present appeal was taken, and the first question to be disposed of, raised by the motion to dismiss, is, whether the appeal was properly taken at this stage of the cause?

It is well settled, by numerous decisions of this court, that no appeal in actions at law can be prosecuted until a decision has been had in the court below, which is so far final as to settle and conclude the rights of the party involved in the action, or to deny to him the means of further prosecuting or defending the suit, as otherwise, by repeated appeals litigation might be protracted to an almost indefinite period. Hence no appeal lies from rulings upon motions or demurrers or other merely interlocutory judgments or orders pronounced and passed in the progress of the cause, to final judgment. All errors committed by the court below in these rulings or judgments, if properly presented by exception or in some other form, are open for review on appeal from that judgment. But the appellant's counsel, treating this order as, in effect, a refusal of his motion, which involves a question of jurisdiction, contends it constitutes an exception to the general rule, and forms a proper subject of appeal, like orders, removing or refusing to move, a cause for trial, or remanding a cause after it has once been removed. Cases, where appeals have been entertained from orders of that character, have been referred to and relied on in support of this position. The case of Wright v. Hamner, 5 Md. 370, is the only instance to be found in our reports of an appeal taken directly, before termination of the suit, from an order removing a cause for trial, and there, no question of the right of appeal was raised or passed upon by the court. It may be doubtful, therefore, whether that case is to be accepted as conclusively establishing the right of immediate appeal from such orders; but this is not a point now to be determined. Appeals have also, in some instances, been taken from orders remanding cases to the court from whence they were removed, but such cases may clearly fall within the general rule, for an order of that kind may operate to deny to a party the means of further prosecuting the suit. If the court that ordered the removal in the first instance should adhere to its original order, and refuse to try it, on being remanded, the cause would terminate, and no trial could ever take place. It is easy to recognize the final nature of such an order,...