Josselson v. Sonneborn

• Decision Date: 01 June 1909
• Citation: 110 Md. 546,73 A. 650
• Parties: JOSSELSON v. SONNEBORN et al.
• Court: Maryland Court of Appeals

73 A. 650

110 Md. 546

JOSSELSON

v. SONNEBORN et al.

Court of Appeals of Maryland.

June 1, 1909.

Appeal from Baltimore City Court; Conway W. Sams, Judge.

Proceedings by Solomon Sonneborn and another against Julius Josselson. From an order and a judgment, defendant appeals. Dismissed.

Argued before BOYD, C. J., and BRISCOE, PEARCE, SCHMUCKER, BURKE, and HENRY, JJ.

J. J. H. Mitnick and William C. Smith, for appellant.

Israel S. Gomborov and Eldridge Hood Young, for appellees.

BURKE, J. This is an appeal from the refusal of the Baltimore city court to quash the proceedings in a cause pending in that court on an appeal from a judgment of a justice of the peace, and also from the judgment entered in the case. The record shows that on the 11th of February, 1907, the parties to the cause entered into a written agreement, whereby the appellees rented from the appellant for the term of two years at the monthly rent of $27, payable in advance on the 11th of each month, a building located at No. 42 South Caroline street, in the city of Baltimore. The appellees, claiming that the appellant in May, 1908, had rented from them at the monthly rent of $16 payable on the first of each month the whole of said building, except the room used as a store, and had failed to pay the rent which fell due on the 1st of August, 1908, instituted proceedings before a justice of the peace of Baltimore city for the recovery of the possession of the premises. All the parties appeared before the justice on the 7th of August, 1908, and the case was then tried, and judgment was rendered in favor of the appellees for repossession of the premises and $16 rent found to be due and costs. From the judgment the appellant appealed to the Baltimore city court. The case was tried in that court before a jury, which found their verdict for the plaintiff for the restitution of the premises and $16 rent overdue and unpaid.

The evidence produced at the trial and set out in the record is most conflicting; but it need not be stated in detail in this opinion. It is sufficient to say that the evidence offered in behalf of the appellees tended to support the claim made by them that they had rented to the defendant the part of the building for the monthly rent stated. This was positively denied by the appellant, and the testimony of himself and a number of witnesses adduced in his behalf tended to show that no such contract of rental as that set up by the plaintiffs was made; but that the appellees had surrendered to the defendant the whole premises except the store, and that he had re-entered and taken possession of the surrendered portion. This controverted question of fact was decided by the jury in favor of the plaintiffs. The defendant then filed a motion for a new trial, and a motion to quash the proceedings, and assigned in support of the latter motion the following reasons: (1) Because the defendant claims title to the premises from which he is sought to be ejected in this case by the plaintiffs as his own property, and claims that he is in occupancy thereof as owner and not as tenant of the plaintiffs, and that the court sitting to hear and determine appeals from the decisions of justices of the peace has no jurisdiction to hear and determine the case; the title to land being involved therein. (2) Because the evidence conclusively shows that the defendant claims title to the premises from which he is sought to be ejected by the plaintiffs as his own property, and claims that he is in occupation thereof as owner, and not as tenant of the plaintiffs, and that the court had no jurisdiction to hear and determine the case because the title to land was involved. (3) Because the papers in the case show that the justice of the peace from whose decision the appeal is taken had no jurisdiction to hear and determine the case. (4) Because the papers failed to show jurisdiction in the justice of the peace to hear and determine the case.

At the hearing of the motion to quash the proceedings, it was agreed by the counsel for the respective parties that the evidence produced and admitted at the trial of the case before the jury should be considered as if the same had been produced and admitted before the court on the hearing of the motion. This evidence is incorporated in the record, and certified to by the judge before whom the case was tried. The court refused to grant a new trial and overruled the motion to quash, and the defendant has appealed. Article 52, § 7, Code, declares that no justice of the peace shall have any jurisdiction in actions where the title of land is involved; and by section 8 of that article it is provided that if the defendant in an action before a justice of the peace for cutting, destroying, or carrying away timber or wood to or from any land in this state, or for doing any other injury to such lands shall allege in writing that he claims title to said lands, or that he acted under a person claiming title to same, whom he shall name in such allegations and shall verify such allegations by oath, the justice shall not take any further cognizance of the case. This section has no application to this case because the action here is not one of the class mentioned therein, and therefore the defendant's rights are in no manner affected by the failure to file before the magistrate the allegations provided for by that section. The defendant had the right to raise the question of the jurisdiction of the Baltimore city court by a motion to quash, and an appeal will lie to this court from the order overruling the motion. An appeal from such an order has been entertained by this court in Darrell v. Briscoe, 94 Md. 684, 51 Atl. 410, and Benton v. Stokes (decided December 9, 1908, and not yet officially reported) 71 Atl. 532. It is an appropriate method to have the question of jurisdiction of the lower court determined, and, while bills of exceptions are not allowed in trial of cases on...