Herzberg v. Adams

• Decision Date: 23 January 1874
• Parties: SELIGMAN HERZBERG v. WILLIAM ADAMS.
• Court: Maryland Court of Appeals

39 Md. 309

SELIGMAN HERZBERG v. WILLIAM ADAMS.

Court of Appeals of Maryland

January 23, 1874

APPEAL from the Baltimore City Court.

William Adams sued Seligman Herzberg in trover, before a justice of the peace, for the conversion of a horse, and in a statement of the cause of action claimed damages to the extent of $99. The plaintiff filed a claim for $100. The justice after hearing the evidence rendered judgment in favor of the defendant, and the plaintiff thereupon appealed to the Baltimore City Court. The case was tried before a jury, and a verdict for $100 was rendered for the plaintiff; the defendant, thereupon filed a motion for a new trial, as also in arrest of judgment. Both of these motions were overruled and the Court reversed the judgment of the justice of the peace, and entered judgment on the verdict for $100 damages and costs. The defendant appealed. After the entry of the appeal, the plaintiff entered a remittitur for the sum of one dollar, part of the damages aforesaid, and also moved the Court to strike out the judgment in the cause, and enter judgment for $99.

The cause was submitted to BARTOL, C.J., STEWART, GRASON, MILLER and ROBINSON, J.

Richard Hamilton, for the appellant.

The Court erred in overruling the motions of the defendant, and entering judgment. In so doing, it acted in excess of, and contrary to its jurisdiction.

First.--Because the verdict of the jury was in excess of the jurisdiction of the Court, and no judgment could properly be entered upon it. Being in excess, the plaintiff could not even remit, because the effect of a remittitur would be to give jurisdiction by consent which this Court has decided cannot be done. Armstrong vs. Mayor and Council of Hagerstown, 32 Md., 55, 56.

Second.--Because the judgment was in excess of the jurisdiction of the Court.

Third.--Because the verdict and judgment were in excess of the damages claimed by the plaintiff in his declaration, and it is a well established principle, as well as rule of law, that the plaintiff cannot recover more than the ad damnum the declaration calls for. 1 Saunders' Plead. and Ev., 740, ( marginal,) 2 Arch. Prac., 1319; Usher vs. Dansey, 4 M. & S., 94; Cheveley vs. Morris, 2 Wm. Black., 1300; 3 Tidd's Practice, 264; Coursey vs. Covington, 5 H. & J., 45.

The effect of the motion in arrest was therefore to leave the plaintiff without a judgment. Evans' Practice, 424.

As to the plaintiff's action in filing a remittitur after judgment was entered--The correctness of the judgment below must be tested by the state of the case at the time it was rendered. Any action taken by the plaintiff after the judgment was rendered, is without avail. The record could not even be amended by consent. Johnston's Adm'rs vs. Thomas and George, 6 Md., 452; Parrish vs. The State, 14 Md., 238; Cheveley vs. Morris, 2 Wm. Blackstone, 1300.

From the time of taking an appeal by the appellant, the case was out of the jurisdiction of the City Court, and the plaintiff's motion could never have been acted upon.

William J. O'Brien, for the appellee.

The primary question to be determined is--whether the Baltimore City Court had jurisdiction of this case. If so, its right to give final judgment is exclusive, and is not a subject for appeal. Mears vs. Remare, 33 Md., 246.

The Baltimore City Court having jurisdiction to the amount of one hundred dollars, on appeal, properly entered the judgment on the verdict of the jury. It is true that the claim was only ninety-nine dollars, but the jury had a right to allow the additional dollar quasi interest, and thus render their verdict for one hundred dollars.

GRASON J., delivered the opinion of the Court.

It has been repeatedly held by this Court, that, in all cases of appeals from judgments of justices of the peace, the judgment of the Appellate Court is final. But these decisions must be understood, as referring to cases within the jurisdiction of the Appellate Court, for, if it exceeds its jurisdiction, an appeal will lie to this Court. Webster, et al. vs Cockey, et al., 9 Gill, 92; State vs. Mace, 5 Md., 337; Kinnear & Willis vs. Lee & Reynolds, 28 Md., 488; Mears vs. Remare 33...