Mears v. Remare

• Decision Date: 01 July 1870
• Parties: EDWARD A. F. MEARS v. RICHARD A. REMARE.
• Court: Maryland Court of Appeals

33 Md. 246

EDWARD A. F. MEARS v. RICHARD A. REMARE.

Court of Appeals of Maryland

July 1, 1870

Appeal from the Baltimore City Court.

This was an appeal from the judgment of the court below, rendered on an appeal from a justice of the peace, in a proceeding by a landlord against his tenant, for wrongfully holding over after the expiration of his term. On the 15th of November 1869, W. H. Bayzand, a justice of the peace of Baltimore City, at the instance and upon the complaint of the appellee issued a summons against the appellant to show cause why he should not vacate certain premises on Charles street, and deliver the same forthwith to the appellee. The summons was made returnable on the 19th of the same month; after two continuances, the cause was tried and judgment rendered for the appellant. From this judgment an appeal was taken by the landlord, and a summons was issued by the Baltimore City Court to the tenant, which was returned non est. Upon this return, the landlord filed a petition, the character of which, together with the action of the court thereon, are sufficiently stated in the opinion of this court. The City Court proceeded to the trial of the case ex parte, and rendered a judgment in favor of the landlord for a restitution of the premises, and for damages and costs. A motion was made by the tenant to strike out the judgment for the following reasons:

1. That he had no legal notice that any appeal had been entered from the judgment of the justice of the peace.

2. That he received no summons to appear in this court to answer an appeal.

3. Because the trial was had ex parte, when only one non est had been returned.

Affidavits were filed in support of the motion. The court overruled the motion and refused to strike out the judgment. Thereupon the present appeal was taken.

The cause was argued before BARTOL, C.J., STEWART, MAULSBY GRASON, MILLER, ALVEY and ROBINSON, JJ.

Edward Israel and Milton Whitney, for the appellant.

The proceedings in this cause were instituted under the special provisions of the Act of Assembly relating to landlords and tenants. The Code of Pub. Gen. Laws, Art. 5, secs. 53-55, provides the manner in which appeals from justices of the peace shall be heard.

In this case only one summons was returned non est, and the court proceeded to hear and determine the case ex parte, notwithstanding the party was not within its jurisdiction, and never had been. The judgment of the court below is void. Brent v. Taylor, 6 Md. 69; 2 Kent, 109.

The court below having proceeded to enter judgment against a party not within its jurisdiction, this court will entertain an appeal from such action. Bell v. Jones, 10 Md. 331; State v. Mace, 5 Md. 337; Kinnear v. Lee, 28 Md. 488; Cockey v. Cole, 28 Md. 276; Hall v. State, 12 G. & J. 329; Boarman v. Israel, 1 Gill, 381, 382; Matthews v. Dare, 20 Md. 248; Baltimore v. Porter, 18 Md. 301; Horner v. O'Laughlin, 29 Md. 466; Evans Pr. 24, 28, 168.

Arthur W. Machen, for the appellee.

The Baltimore City Court was in the exercise of an appellate jurisdiction, and its judgment (in the absence of a statute providing for the case,) is not a subject for appeal, and this appeal should, therefore, be dismissed.

The case was properly in the City Court upon an appeal duly taken. Necessarily, its jurisdiction to determine every intermediate question, as well as to give final judgment upon the merits, is exclusive. Rundle v. Baltimore, 28 Md. 361; Hough v. Kelsey, 19 Md. 451; Balto. & Haver de Grace Turnpike Co. v. N. C. R. R. Co., 15 Md. 193; Swan v. Cumberland, 8 Gill, 154.

The Constitution in terms declares the decision of the Judge holding the Baltimore City Court to be "final," in case of an appeal from a justice of the peace. Const. Art. 4, sec. 34.

From a special limited jurisdiction, where the proceeding is not after the course of the common law, no appeal lies to any other tribunal. Carter v. Dennison, 7 Gill, 173; Webster v. Cockey, 9 Gill, 92; Rundle v. Baltimore, 28 Md. 361; Kinnear v. Lee, 28 Md. 488.

Unless by the express provision of some Act of Assembly, an appeal will not lie in any case in which a writ of error would not lie; hence, as a writ of error cannot lie to a court vested with a special jurisdiction, and not proceeding according to the forms of the common law, an appeal does not lie. Savage Man. Co. v. Owings, 3 Gill, 498, 499.

In the present case, the City Court was not in the exercise of its general jurisdiction as a court proceeding according to the forms of the common law. Consequently, upon this ground--were there no other--an appeal will not lie to this court, none being given by statute in such case.

Robinson J., delivered the opinion of the court.

This is an appeal from a judgment of the Baltimore City Court, in a proceeding instituted by a landlord, in conformity with the provisions of the General and Local law, against a tenant for years, wrongfully holding over after the expiration of his term. 1 Code, Art. 53, 2 Code, Art. 4. The case was originally tried before a justice of the peace, and the judgment being in favor of the tenant, an appeal was taken by the landlord to the Baltimore City Court.

The case was regularly docketed, and summons issued for the appellant, which, being returned non est, the appellee filed a petition alleging that, although the summons was returned non est, it was in fact served by being made known to the family of the appellant, and also by service upon his attorney; that in a proceeding of this kind, a summons was unnecessary, and the petitioner prayed that the cause might be put in order for trial and final determination upon its merits, and if deemed necessary, that the sheriff be directed to amend his return by stating the facts specially in regard to the service of the writ. Without notice to the appellant, an order was passed by the court directing the sheriff so to amend his return.

It appears by the amended return, that the sheriff, having called several times at the residence...