Hazlehurst v. Morris

• Decision Date: 30 January 1868
• Citation: 28 Md. 67
• Parties: HENRY R. HAZLEHURST v. STEPHEN MORRIS, et al.
• Court: Maryland Court of Appeals

28 Md. 67

HENRY R. HAZLEHURST v. STEPHEN MORRIS, et al.

Court of Appeals of Maryland

Jan. 30, 1868

APPEAL from the Circuit Court for Howard County.

The facts of the case will be found sufficiently stated in the opinion of the Court.

The cause was argued before BARTOL, C.J., STEWART, BRENT, GRASON and MILLER, J.

George H. Williams for the appellant.

This was an action of assumpsit brought by the appellees against the appellant and one James Murray, as partners, to recover the amount of two bills of exchange--the narr. contained also the common counts; it was filed on the 30th August, 1862, and on the same day the writ was issued to the September term; at which term the sheriff made his return of the same " tarde. " There was no second writ issued at the September term, but the whole of said term was allowed to pass without the issue of a writ in the case and the action was in law discontinued. On the 28th August 1863, about a year after the issuing of the first writ and a few days only before the expiration of the March term of 1863, a writ purporting to be a second writ in the same cause was issued. The sheriff returned the appellant "summoned," James Murray, "not found." Upon the return of the writ, the appellant appeared and laid a rule upon the plaintiffs to file a declaration; and the clerk by his docket entries appearing to treat the first and second summons as one continuing case, the motion was made to strike out said entries as well as to require the appellees to file a declaration to the second writ. The Court upon argument, overruled the motion, directed the cause to be brought up by regular continuances as if there had been no omission to re-issue to the March term of 1863; and laid a rule upon the appellant to plead. It is therefore contended in behalf of the appellant, that the failure to issue a second writ to the succeeding term after the return of the first, worked an entire discontinuance of the cause. Bennington vs. Dinsmore, 2 Gill, 354; 2 Tidd's Prac., 733; 2 Sand. Plead. & Ev., 963. That by the Act of 1856, ch. 112, sec. 6, ch. 1, it is left optional with the plaintiff to renew his writ or not, and it is only when it is so renewed, that it remains in force and is available.

W. Pinkney Whyte for the appellees.

This appeal is taken from the order of the Court below, overruling the motion of the appellant at the March term, 1864, "to strike out all the docket entries in the * * * cause, and lay a rule on the appellees to file their declaration in said cause." In behalf of the appellees, the Court is moved to dismiss this appeal, because the order appealed from is not such "a judgment or determination of a Court of law," from which an appeal will lie.

It is settled, by authority, that "an appeal cannot be prosecuted, until a decision has been had in the Court below, which is so far final, as to settle and conclude the rights involved in the action, or denying to the party the means of further prosecuting or defending his suit;" and "that when the proceedings below shall be terminated, an appeal will then lie, and all the errors of the Court below, in the progress of the cause, will be proper subjects for complaint of the party and for the correction of the Court of Appeals." Boteler & Belt vs. The State, Chew & Co., 7 G & J., 109; Welsh vs. Davis, &c., 7 Gill, 364; Wheeler, et al., vs. The State, use of Bateman, 7 Gill, 33; Code Pub. Gen'l Laws, Art. 5, sec. 3; Green vs. Hamilton, 16 Md. Rep., 329; Evans' Prac., 557, (ed. 1867.)

There was nothing, therefore, in the order appealed from, "settling and concluding the rights involved in this action or denying to the appellant the means of defending the suit;" so far from it, the Court immediately passed an order laying a rule upon him to plead to the declaration filed in the cause and thus to make any defence he had, to the action.

The motion to dismiss ought, therefore, to prevail, but if it should not, the appellees will contend, that there was no error in the Court below in its refusal to grant the motion of the appellant.

The suit was brought to the September term, 1862, of the Circuit Court for Howard county, and the narr. regularly filed. The writ issued to this term was returned " tarde," but it does not appear from the record, whether it was renewed to March term, 1863, or not, as it was the duty of the clerk to do, as of course, but it was renewed to September term, 1863.

The Act of 1856, ch. 112, was not in force at this time, as it was repealed by the Code in 1860. Code Pub. Gen'l Laws, Art. 75, sec. 1.

The universal practice in this State, at that time and for many years before, was, for the clerk to renew all unserved writs to the succeeding term, unless otherwise ordered. No order for renewal was ever given, except verbally at the call of the docket. It was the duty of the clerk to issue the writ to the March term, 1863, and his omission to do it, if such omission plainly appeared, did not discontinue the cause. The practice in such cases is, when the writ is served, to enter up the continuances. Evans' Practice, 109, ( ed. 1867;) Dennison, adm'r, d. b. n. c. t. a., of William Woods vs. John Trull, Dec., 1834; Mulliken vs. Duvall, 7 G. & J., 358.

GRASON J., delivered the opinion of this Court.

On the 30th of August, 1862, the appellees instituted their suit against the appellant and James Murray as partners, in the Circuit Court for Howard county, and, on the first day of the ensuing September term, the summons was returned by the sheriff " tarde. " It does not appear, from the record, that the summons was renewed to the March term, 1863, but on the 28th day of August of that year, a second summons was issued, returnable to the ensuing September term, and at said term was returned endorsed, "summoned Henry Hazlehurst, not found James Murray."

The appellees had declared against the defendants, named in the summons, when it was first issued on the 30th August, 1862. On the third Monday in March, 1864, the appellant, having appeared to the action, moved the Court to strike out all the docket entries in the cause, and to lay a rule on the appellees to file their declaration. The Court over-ruled the motion; and, on motion of the appellees, ordered the clerk to bring up the cause from the appearance docket of 1862, by entering regular continuances, "as if no omission by the clerk had taken place to re-issue to the March term of 1863." From that order this appeal was taken, and two questions are presented for the consideration of this Court: the first, arising on a motion to dismiss the appeal is, whether the order, passed by the Court below, was of such a nature as to entitle the party to an appeal; and the second, whether there was error in passing said order.

1st. The law has been clearly settled in this State, that "no appeal can be prosecuted to this Court 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 denying to the party the means of further prosecuting or defending the suit. When the proceedings below shall be terminated, an appeal will then lie, and all the errors of the Court below, in the progress of the cause, will be proper subjects for complaint of the party, and for the correction of this Court." 7 G. & J., 112; 7 Gill, 366; 16 Md. Rep., 328. The order passed in the Court below, did not settle and conclude the rights involved in the cause; nor was it of such a character as to deny to the party the means of defending the suit, and was not, therefore, so far final as to be a proper...