Gusdorff v. Duncan

• Decision Date: 05 December 1901
• Citation: 50 A. 574,94 Md. 160
• Parties: GUSDORFF et al. v. DUNCAN.
• Court: Maryland Court of Appeals

50 A. 574

94 Md. 160

GUSDORFF et al. v. DUNCAN.

Court of Appeals of Maryland

December 5, 1901

Appeal from superior court of Baltimore city; Henry D. Harlan Judge.

Action of trespass quare clausum fregit by Lillian Duncan against Gusdorff & Joseph and another. From a judgment in favor of plaintiff, defendants appeal. Reversed.

Argued before McSHERRY, C.J., and FOWLER, PAGE, PEARCE, SCHMUCKER and JONES, JJ.

Steiner & Putzel, for appellants.

Robert H. Carr, Jr., for appellee.

SCHMUCKER J.

The appellee, as plaintiff below, brought an action of trespass quare clausum fregit against the appellants and one Emanuel E. Dougherty in the Baltimore city court. The declaration which appears in the record, contains but one count. It avers that on the date mentioned "the defendants, their agents, employés, or servants, forcibly entered the premises 518 West German street, occupied and possessed by the said plaintiff, to the great loss, injury, and damage of the said plaintiff. And the said plaintiff claims $5,000 therefor." The plaintiff afterwards dismissed the suit as to the defendant Dougherty. The appellants, as defendants, filed three pleas to the declaration. The first was the general issue. The second averred, by way of justification, that they had entered the plaintiff's premises under a license from one Jennie Cook, who resided therein, and was duly authorized to grant the license. The third plea was also by way of justification, and set up a writ of replevin against Jennie Cook as authority for the entry. The appellee, as plaintiff, joined issue on the first plea, and replied to the second that Jennie Cook did not reside in the premises entered upon, and had no authority to grant a license for the entry. She demurred to the third plea. The demurrer was sustained by the court, whereupon the appellants, with leave of the court, amended their third plea. The plaintiff then demurred to the amended plea, and the court overruled that demurrer. The third plea, in its amended form, was a good one; but it was the duty of the court, under the established rule, in considering the demurrer, to inspect the whole record, and, mounting up to the first fault, to render judgment against the party committing the first substantial error in his pleadings. Osceola Tribe v. Schmidt, 57 Md. 107; Eakle v. Smith, 27 Md. 480. An inspection of the record discloses a material error in the declaration, in that it fails entirely to state the location of the premises upon which the trespass is alleged to have been made. Trespass q.c.f. is distinctively a local action, and the declaration is required, by specific averments, to show that the property in dispute is within the jurisdiction of the court. Poe, Pl. § 728. No lengthy or detailed description of the premises was necessary, but the fact that they were located in Baltimore city was jurisdictional, and should have been distinctly averred in the declaration. Gladfelter v. Walker, 40 Md. 11. It is true that the plaintiff describes herself as of Baltimore city in the narr., and alleges that the premises to which the alleged trespass occurred were "occupied and possessed" by her, but that does not supply the want of the direct averment as to the location of the premises required by the settled rules of pleading. At the trial of the case there was evidence tending to show that the agents of the defendants had twice upon the same day entered the house No. 518 West German street, in Baltimore city, in which the appellee then resided and kept a lodging or furnished room house, without her permission, and had refused to leave it when ordered by her to do so, and had, against her protest, gone through portions of the house, alleging that they were in search of certain furniture which they said was in the custody of one Jennie Cook. On their second visit to the house they were accompanied by Dougherty, who was a constable, and had with him a writ of replevin against Jennie Cook for certain articles of furniture. There was no evidence tending to show either that Jennie Cook resided in the house, or that the furniture sought for had ever been there. The evidence also tended to show that the defendants' agents used great rudeness and some violence to the appellee when she resisted their efforts to force themselves through her house. The verdict and judgment were for the plaintiff, and the defendants appealed.

The record contains two bills of exception. The first brings up for our review the refusal of the learned judge below to direct the jury upon the application of the appellants, made at the trial before him, to render a verdict in their favor because the plaintiff had dismissed the suit as to their codefendant, Dougherty. There was no error in this ruling. A trespass is, at law, regarded as the joint and several act of those committing it, and the injured person has his remedy against all or any of them; and, if he has sued them all, he may dismiss his suit as to any one or more of them, and proceed against the others. Poe, Pl. § 527; Herbert v. Hendrickson, 38 N.J.Law, 298; Weakly v. Royer, 3 Watts, 460; U.S. v. Linn, 1 How. 107, 11 L.Ed. 64.

The second exception is taken to the court's rulings on the prayers. The plaintiff offered 6 prayers, and the court granted all of them except the fifth, which it rejected. The defendants offered 12 prayers, all of which were rejected.

The plaintiff's first prayer was erroneous in the direction contained in it as to the measure of damages. It instructed the jury that, if they found for the plaintiff, they might "award such damages for the wrong and injury of the property and personal rights and feelings of the plaintiff as they might think a just compensation for the wrong and injury sustained." No personal trespass was laid in the declaration, which contained only the one brief count already mentioned, for a trespass q.c.f.; nor were any damages claimed therein for any injuries to the...