Legum v. Blank
| Decision Date | 16 February 1907 |
| Parties | LEGUM v. BLANK et al. |
| Court | Maryland Court of Appeals |
Appeal from Court of Common Pleas; Henry D. Harlan, Judge.
Action by Morris Legum against Peter Blank and others. From a judgment sustaining a demurrer to the narr., plaintiff appeals. Affirmed.
Argued before BRISCOE, BOYD, BURKE, SCHMUCKER, and PEARCE, JJ.
Myer Rosenbush, for appellant.
O Parker Baker and G. E. Robinson, for appellees.
This suit was instituted in the court of common pleas of Baltimore City. There are six common counts and a special one (7) which alleges that the plaintiff purchased, by contract in writing, of the defendants, two leasehold properties in the city of Baltimore, subject to an original ground rent of one cent each, with the further condition that, "should said ground rents not be original rents," said contract could, at the option of the plaintiff, be declared null and void; that the plaintiff paid upon the purchase price of said properties a deposit of $25 upon the express condition recited in the contract, that said deposit should become immediately due and payable from the defendants to the plaintiff, should said ground rents not be original rents. It is then alleged that "an examination of the title of said properties discloses the fact" that the said ground rents were not original rents, but were sub-ground rents, and the plaintiff notified the defendants that he would not accept title to said properties by reason thereof, and demanded said $25 so paid as a deposit, but the defendants failed and refused to pay the same. The narr. concluded with a claim of $75 damages. A demurrer was filed to the narr., and the following reasons assigned: (a) Because the amount claimed ($75) is not within the jurisdiction of the court, and this suit should have been brought before a justice of the peace; and (b) because this is an action of assumpsit, and the title to land is not involved in such action, and therefore the amount claimed is not within the jurisdiction of the court; and for other reasons to be assigned at the hearing. The demurrer was sustained, judgment on the demurrer entered, and the plaintiff appealed.
At the argument it was stated that the appeal was prosecuted because it often happened in Baltimore that such contracts provided for a deposit of less than $100, and there was uncertainty as to whether suit could be brought for the recovery of such deposit before a justice of the peace, by reason of the provisions in article 52 of the Code of Public General Laws, prescribing their civil jurisdiction. After providing, in section 6 of that article, that such jurisdiction "extends to all cases for the enforcement of contracts and to obtain redress for wrongs where the debt or damages claimed shall not exceed one hundred dollars," etc., section 7 provides: "But no justice of the peace shall have any jurisdiction in actions where the title to land is involved, nor in actions for slander, for breach of promise to marry or to enforce any lien for work done or materials furnished." Section 8 () makes this provision: "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 the same, whom he shall name in such allegation, and shall verify said allegation by oath, the justice shall take no further cognizance of the case."
Section 28 of article 4 of the present Constitution provides that "the superior court of Baltimore City, the court of common pleas and the Baltimore city court shall each have concurrent jurisdiction in all civil common-law cases, and concurrently all the jurisdiction which the superior court of Baltimore City and the court of common pleas now have," except in equity and other cases mentioned. The jurisdiction those courts "now have," as used in that clause, referred to that under the Constitution of 1864. The test of jurisdiction, in actions ex contractu, of the three courts above named, "is not merely the amount claimed, but also the amount recovered, which recovery must exceed $100." 1 Poe, § 31. That was so decided in Rohr v. Anderson, 51 Md. 218, in which case a verdict was rendered for $87.84, and on motion a non pros. of the action was entered. In Reese v. Hawks, 63 Md. 130, an action was brought in the court of common pleas on two promissory notes each for the sum of $50. As the plaintiff was entitled to recover, as of right, interest on the two notes, the amount due him, including interest, exceeded $100; but, inasmuch as the jurisdiction of that court was limited to suits "where the debt or damages claimed, exclusive of interest, shall be over one hundred dollars," the defendant filed a plea to the jurisdiction. That of justices of the peace being limited to cases in which "the debt or damages claimed shall not exceed one hundred dollars"--the amount recovered in actions ex contractu being the test--there was presented a case where a justice of the peace could not enter judgment, because the amount, with interest, exceeded $100, and the court of common pleas could not enter one under section 34 of article 4 of the
Constitution of 1864, because the amount of the debt, exclusive of interest, was not "over one hundred dollars." But section 33 of that article gave the superior court jurisdiction "where the debt or damages claimed, exclusive of interest, shall exceed the sum of one thousand dollars *** and in all other civil cases not hereinafter assigned to the court of common pleas." This is termed, in the opinion of Reese v. Hawks, "a residuary jurisdiction covering all civil cases not assigned to the court of common pleas," and this court said, in speaking of it: "The residuary grant of jurisdiction to the superior court, we take it, was designed to cover such a claim, and, so applying it, a forum was supplied for a claim otherwise remediless, and jurisdiction was completed, in conjunction with that already expressly allotted, for every kind of demand." It was then held that, as the Constitution of 1867 gives the superior court, the court of common pleas, and the Baltimore city court, concurrently, all the jurisdiction previously exercised by the first two, except as otherwise provided, the last two named "share the residuary jurisdiction to entertain a suit where the interest recoverable carries a claim, which otherwise would not exceed $100, beyond that sum." The court then distinguished that case from Rohr v. Anderson, showing that the amount involved in the latter was within the jurisdiction of a justice of the peace. So in this case, inasmuch as justices of the peace have no jurisdiction in actions where the title to land is involved, it would seem to be clear that the court of common pleas, as well as either of the other two courts named, would have jurisdiction in an action ex contractu where such title is involved, within the meaning of the statute, although the amount that could be recovered would not exceed $100; there being no other tribunal vested with jurisdiction to entertain such suit. It is by reason of the "residuary jurisdiction" vested in the superior court by the Constitution of 1864, and conferred upon the three courts under that of 1867.
The next question therefore to be determined is: Would a justice of the peace have jurisdiction of such a case as that presented by this narr.?
In Deitrich v. Swartz, 41 Md. 196, this court held that the circuit court for Harford county did not have jurisdiction in an action of replevin for 20 logs of timber which were appraised at $10.71, although by the replication facts were alleged, which tended to show that the title to the land upon which the logs grew and were cut was involved. But it was held that, when what is now section 7 is read in connection with sections 6 and 8 of article 52 of the Code of Public General Laws of 1904, "its sole purpose and effect is to deny jurisdiction to the justices in the specified actions for slander, for breach of promise of marriage, to enforce mechanic's liens, and in actions of ejectment or trespass quare clausum fregit, and the like, where title to land is or may be necessarily and directly in issue, and that it has no application whatever in any case to an action of replevin." That was followed in ...
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