Griffin v. Leslie

• Decision Date: 05 May 1863
• Citation: 20 Md. 15
• Parties: HENRY GRIFFIN, v. ROBERT LESLIE.
• Court: Maryland Court of Appeals

20 Md. 15

HENRY GRIFFIN, v. ROBERT LESLIE.

Court of Appeals of Maryland.

May 5, 1863

Appeal from the Superior Court of Baltimore City:

This was an action brought by the appellee against the appellant under the Act of 1858, ch. 323, to recover the amount of three promissory notes. The case is stated in the opinion of this Court.

The cause was argued before BOWIE, C. J., and BARTOL GOLDSBOROUGH and COCHRAN, J.

George H. Williams and John H. Ing, for the appellant argued:

1. That the order of the 31st January having determined against the right to remove, it was the subject matter for an appeal.

2. That, after the prayer of appeal, there was nothing left for the further proceedings of the Court to be based upon.

3. That whether the appeal was properly taken, was not to be decided by the Court below, nor its clerk, but by the appellate tribunal alone. Keighler vs. Savage Manf'g Co., 12 Md. Rep., 413.

4. That if the appeal was properly refused, then the defendant's plea was a good plea, both in form and substance. Act of 1856, ch. 112, sec. 92. Cromwell vs. The State, 12 G. & J., 257. Wright vs. Hamner, 5 Md. Rep., 370.

5. That by the provisions of Art. 10 of the Constitution, upon the filing of the appellant's suggestion for removal, the Court below was deprived of all jurisdiction over the suit except the power to designate to which adjoining county it should be removed; and that the judgment subsequently rendered by the Court, being without lawful authority must be reversed.

James Malcolm, for the appellee:

The appellee will contend, that the Court below were right in directing the judgment to be entered, and rejecting the motion for a removal:

1st. Because the Constitution of the State never contemplated that a case should be removed, where, by the rules of pleading, there was confessedly no trial to take place. See Article 4, Sec. 28, of the Constitution of the State of Maryland.

2d. That by the Act of 1858, ch. 323, the party was required to plead, in certain cases, with an affidavit of the truth of the plea, by a certain time, and this was one of the cases provided for by said Act, and in case of a defendant's failure so to do, there was to be no trial, and judgment was to be entered, as a matter of course. And it was, therefore, necessary for the defendant to satisfy the Court in which the suit was pending, that there was to be a trial by a plea and affidavit, as prescribed by said Act; otherwise a party might, in the manner proposed, by a fraud upon the Act, deprive the plaintiff of the right secured by the Act of 1858.

3d. That the party desiring to remove a case, either plaintiff or defendant, is required by said 4th Article, sec. 28, to put in his pleadings before a removal, as is clearly apparent from the words of said Article, for how otherwise could a party indicted say, in the case of an indictment, whether he was guilty or not guilty? Or, in the case of a civil suit, how could a defendant say whether he admitted the charges in the declaration or not? Or how could the State have an opportunity to admit the truth of a plea or not, to an indictment, or the plaintiff to admit the truth of the defendant's plea, which, if admitted, there would be no ground for a removal, nor could the State or plaintiff have the opportunity, or be in a condition to suggest, a removal on their part?

OPINION

BOWIE, C. J.

In this case, the defendant, the appellant, was returned " Summoned" to the January Term 1859, which began on the second Monday of that month. He appeared by attorney, and on the 14th of January filed a suggestion in writing, supported by affidavit, that a fair and impartial trial could not be had in the Court where the suit was depending. On the 31st of January 1859, the Court refused to remove said cause, because no plea with an affidavit had been filed as required by the Act of 1858, ch. 323, from which order refusing the removal the defendant prayed an appeal. The Court below refused to allow the appeal to be entered and the cause transmitted, but proceeded to enter final judgment for want of a plea; whereupon a second appeal was prayed and granted. The removal of causes from one county to another for trial, upon suggestion in writing supported by affidavit or other proper evidence, that a fair and impartial trial cannot be had in the county where such suit or action is pending, was and is deemed so essential to the impartial administration of justice, as to be guaranteed by the Constitution and Laws of this State, in all suits or actions at law, issues from the Orphan's Court, or from any Court of Equity, petitions for freedom, presentments or indictments, Art. 4, sec. 28; 1854, ch. 325; Code, Art. 75, secs. 71, 72, 73. Notwithstanding the Constitution declares, " that such further remedy in the premises may be provided by law as the Legislature...