Greenberg v. Dunn

• Decision Date: 10 March 1967
• Docket Number: No. 149,149
• Parties: Benjamin GREENBERG v. Albert DUNN.
• Court: Maryland Court of Appeals

Page 651

245 Md. 651

227 A.2d 242

Benjamin GREENBERG v. Albert DUNN.

No. 149.

Court of Appeals of Maryland.

March 10, 1967.

William A. Fisher, Jr., Baltimore, William D. Macmillan and Semmes, Bowen & Semmes, Baltimore, on the brief, for appellant.

Carl A. Durkee, Pikesville, for appellee.

Before HAMMOND, C. J., and HORNEY, MARBURY, BARNES and FINAN, JJ.

HAMMOND, Chief Judge.

At the instance of the plaintiff, Judge Foster removed a non-jury action at law from the Superior Court of Baltimore City to the Circuit Court for Carroll County, and the defendant appealed. The sole issue to be decided is whether the court had the power of removal under the circumstances. The appellee originally sought to dismiss the appeal on the ground that the order appealed from was interlocutory but now concedes that it was final and appealable under State to Use of Dunnigan v. Cobourn, 169 Md. 110, 113, 179 A. 512; McMillan v. State, 68 Md. 307, 308, 12 A. 8; Elliott v. Larrimore, 203 Md. 526, 528, 101 A.2d 817.

Dunn, the appellee, filed an action of assumpsit against Greenberg, the appellant, in the Superior Court. After Judge Cullen held that Dunn's prayer for a jury trial had been filed too late under Rule 545 of the Rules of the Supreme Bench, the case was entered on the non-jury docket.

Dunn then made a suggestion for removal which Judge Foster granted. Greenberg moved for rescission of the order of removal and his motion was denied.

The appellant's contention is that, with specified exceptions not here pertinent, such as trials of issue from the Orphans' Court, only a civil action at law in which there is an issue of fact to be decided by a jury may be removed as a matter of right under § 8 of Art. IV of the Constitution and the almost identical implementing statute, Code (1957), Art. 75, § 44, and rule, Maryland Rule 542. He gathers support for his position in the interpretation he finds this Court to have given the constitutional and implementing provisions.

In 2 Poe, Practice (Tiffany Ed.), § 93, the learned author says:

'Under the constitutional and legislative enactment upon the subject, it is held that they do not apply to cases in equity, (Cooke v. Cooke, 41 Md. 362; Olson v. Love, 234 Md. 503, 504, 200 A.2d 66) nor to issues in insolvent proceedings (Trayhern v. Hamill, 53 Md. 90) nor to appeals from judgments of justices of the peace (Geekie v. Harbourd, 52 Md. 460); nor to proceedings instituted by direction of the Governor under sections 98 to 102 of article 23 of the Code, for the forfeiture of corporate franchises for abuse, misuse or non-use (Bel Air Social Club v. State, 74 Md. 297, 22 A. 68; Hoshall v. Hoffacker, 11 Md. 362); but are wholly directed to jury trials.'

Mr. Poe's authority for his statement that the removal provisions 'are wholly directed to jury trials' is the Cooke case. In there deciding that an equity case is not removable, Judge Miller, for the Court, suggested that it should not be assumed that the people would elect judges so unfit or prejudiced as to be unable to render fair and impartial judgments in cases where they are not connected with the parties or otherwise personally interested ant that, in any event, an appeal lies from the judgment of the equity court upon questions of fact as well as of law by which a corrupt or prejudiced, as well as a mistaken, judgment can be speedily corrected. Judge Miller continued (pp. 371-372 of 41 Md.):

'But still further, not only is there no language in the clause which plainly directs it to prejudice in the judges, but, looking to the origin of the right or power, we find it directed wholly to jury trials, and this, we think, has never been lost sight of or departed from in any of the constitutional or legislative provisions on the subject. The object was to get rid of the influence of local prejudice in the community from which the jury to try the case was to come, and thus, as far as practicable, to secure a fair and impartial trial by jury.'

The reasoning of Judge Miller as to the appellate review of questions of fact as well as of law in equity cases would now under Maryland Rule 886 a, which conforms the scope of review of non-jury actions at law to the scope of review of actions in equity, apply to cases at law tried by a judge, although when he wrote and when the present constitutional provision was adopted in 1874, this was not true of cases at law.

Prior to the adoption in 1941 of then Rule 9 c (now in essence Maryland Rule 886 a), see Code (1947 Com.Supp.), General Rules of Practice and Procedure, Pt. Three, III, p. 2053, and Explanatory Note, pp. 2086-89, there was no appellate review on the facts in a non-jury law action, and so there was a closer analogy in this respect to appeals in jury cases than to appeals in equity cases. The late Judge Eli Frank (Frank, His Day in Court, 33 Proceedings, Md. State Bar Association 78, 90-92, quoted at pp. 2087-2088 of the 1947 Cum.Supp.) explained the former practice:

'Under any trial system, where a case is heard before the judge alone, he necessarily decides both the law and facts. Under the practice prevailing in Maryland, he is required to instruct himself sitting as jury as to the law and having, as jury, determined the facts, to apply the law to them. His decisions upon the law are subject to review upon appeal. His determination of facts is final and subject to no review except his own, upon motion for a new trial. Occasionally judges have been accused of granting all the law asked for by the party against whom the decision is to be made and then deciding against that party on the facts. In this way, all opportunity for appeal to a higher tribunal is cut off. * * * Of course, no judge worthy of his responsible position would consciously proceed in such a manner, and yet the Bar has always experienced the fear that judges might be influenced by such an unworthy motive. On the other hand, in his effort to preserve to the defeated litigant an opportunity for appeal a conscientious judge might often lean backward and expose the successful party to the expense and delay of an appeal, where it would be improper to do so. I am convinced that much of the unpopularity of non-jury trials is to be attributed to the considerations just discussed.'

It is true also, as Judge Miller and Mr. Poe say, that the removal provisions were adopted to offer and did contemplate primarily a method of escape from local community prejudice. The appellant points out that Judge Parke, speaking for the Court in Mayor and City Council of Baltimore v. Libowitz, 159 Md. 28, p. 31, 149 A. 449, p. 450, in holding that a mandamus action was not removable, said:

'The evil to which the right of removal is addressed is the undue influence of local passion, prejudice, or interest to which jurors as a class are peculiarly subject and responsive and which are often reflected in their verdicts to the injury of a litigant.'

There is the further fact helpful to the position of the appellant, that, as Judge Parke notes in Libowitz, a case may be removed to a court in the same circuit and heard before the same judge who would have heard it in the first instance and who ordered it removed.

Although no Maryland case has held that a non-jury action at law is not removable, the appellant's argument that it is not is, under the language of the cases, a logical and effective exercise in persuasion.

Novertheless we feel constrained to hold that a non-jury action at law is removable. The words of § 8 of Art. IV of the Constitution suggest that it is. That section begins in this way: 'The parties to any cause may submit the same to the Court for determination without the aid of a jury, and in all suits or actions, at law * * * upon suggestion in writing under oath of either of the parties * * * that such party cannot have a fair and impartial trial in the court in which the same may be pending, the said court shall order * * * the record * * * to be transmitted to some other court * * *.' The usual non-jury case in a law court is literally a 'suit or action at law,' and 'all' such suits or actions are declared to be removable. The word 'all' leaves little, if any, room for exceptions as we have noted in Spruell v. Blythe, 215 Md. 117, 124, 137 A.2d 183, and Food Fair Stores, Inc. v. Raynor, 220 Md. 501, 512, 154 A.2d 814, wherein we adverted to the view of Justice Cardozo, speaking for the Court in Baltimore National Bank v. State Tax Commission, 297 U.S. 209, 212, 56 S.Ct. 417, 419, 80 L.Ed. 586, 589, when he said: '* * * the burden is heavily on the suitor who would subject the word 'all' with its uncompromising generality to an unexpressed exception.'

In addition, the statement in the Constitution of the right of removal of 'all' such suits or actions follows in the same sentence the conferring of the right to waive a...