Middleton v. Morgan

Decision Date15 October 1971
Docket NumberNo. 30,30
Citation263 Md. 154,282 A.2d 94
Parties, 50 A.L.R.3d 755 E. B. MIDDLETON et al. v. Marian E. MORGAN, an infant, by Henry Morgan, her husband and next friend, and Herny Morgan, individually.
CourtMaryland Court of Appeals

John F. King, Baltimore (Robert H. Bouse, Jr., and Anderson, Coe & King, Baltimore, on the brief), for appellants.

Searle E. Mitnick, Baltimore (William H. Engelman and Berenholtz, Kaplan & Heyman, Baltimore, on the brief), for appellees.


HAMMOND, Chief Judge.

Marian Morgan and her husband sued two doctors in the Superior Court of Baltimore, alleging that in the course of an operation upon Mrs. Morgan the doctors had left inside her a surgical sponge, with consequent painful and harmful effects. The doctors replied in June 1969 that they did not commit the wrongs alleged and in February 1971 suggested to the court 'that they cannot have a fair and impartial trial in this Court,' and prayed the court 'to order and direct the removal of the record of the proceedings in this case to some other Court having jurisdiction for trial.' Judge Code ordered the case removed to 'some other court having jurisdiction,' namely, the Court of Common Pleas of Baltimore City. He did this despite the urging of the movants that the case be sent outside Baltimore after they refused to tell him what, if any, prejudice they would suffer if the case were tried in the City. The movants were unvarying in the non-specificity of their responses to various questions of Judge Cole as to the nature and extent of the claimed prejudice, saying that they were not required to go beyond the allegation in the suggestion of removal and that they are not 'required to assign a reason (for the prejudice of Baltimore City jurors).' When Judge Cole persisted, asking 'what has happened in the Baltimore community which gives a climate which would give your clients an unfair trial?' counsel replied: 'I submit that I am not required to answer that to effectively exercise the defendants constitutional rights of removal.' He said that the prejudice 'extends throughout Baltimore City * * * throughout the entire community.'

In their appeal from Judge Cole's refusal to send the case outside the City, the doctors say they were denied their constitutional right of removal guaranteed by Art. IV, § 8, of the Maryland Constitution. The claim is that the right of removal is given to enable escape from the prejudices of jurors in a given community and a removal from one court in Baltimore to another does not gratify the purpose and desired effect of the constitutional provision. Appellants recognize (but do not expressly acknowledge) that Weiskittle v. State, 58 Md. 155, decided in 1882, is flatly against their contention, holding as it did that a removal from one court in Baltimore City to another was a removal within the contemplation of the constitutional provision, but they strongly urge that the case should be distinguished because in 1882 each court in Baltimore drew its own panel of jurors and in 1971, although each court has its own panel, all the jurors are treated as a pool and may sit from time to time in any court.

We are not persuaded. In Weiskittle, Judge Stone for the Court said at pp. 156-159:

'It is enough for the purpose of this decision to say, that none of the Constitutions that have been in force in this State, ever gave to the party seeking the removal of his case, the right to determine that it should go to a different circuit, except the Constitution of 1867. That Constitution did give the party applying for a removal, the unrestricted right to have his case removed to a different circuit, if he should so elect.

'After an experience of seven years it was found that the Constitution of 1867, Art. IV, § 8, (the section that relates to removals,) did not work well in practice, and it was amended by the Act of 1874, ch. 364, which was adopted by the people, and is now a part of the organic law. * * * In the amendment, the right of election contained in the original section was omitted, and we cannot doubt, upon either reason or authority, that such an omission operated as a repeal of this right of election, and that now it rests in the discretion of the Court, from which the removal is sought, to send the case to some other court having jurisdiction, either within or without the circuit, as it may think best.

'Baltimore City is a complete Judicial Circuit, (the 8th), and in that circuit there are several distinct courts, each with its distinct organization and jurisdiction defined in the Constitution.

'The Superior Court of Baltimore City is one court within that circuit,...

To continue reading

Request your trial
7 cases
  • Davidson v. Miller
    • United States
    • Maryland Court of Appeals
    • September 18, 1975
    ...from one court having jurisdiction to another, leaves the choice of court to the discretion of the removing judge. Middleton v. Morgan, 263 Md. 154, 282 A.2d 94 (1971); Marzullo v Kovens Furniture Co., 253 Md. 274, 252 A.2d 822 (1969). See also Maryland Rule 1200 c 2(b). When a motion for r......
  • Perkins v. Eskridge
    • United States
    • Maryland Court of Appeals
    • September 24, 1976
    ...mere paper removal from one court to another within the City in satisfaction of the constitutional mandate, see Middleton v. Morgan, 263 Md. 154, 158, 282 A.2d 94, 96-97 (1971), whereas litigants filing suits in the 23 counties-in each of which there is only one law court of general jurisdi......
  • Firstman v. Atlantic Const. & Supply Co.
    • United States
    • Court of Special Appeals of Maryland
    • October 3, 1975
    ...bias or prejudice as would manifest itself in the locality in which the case originated. 5 The appellants in Middleton v. Morgan, 263 Md. 154, 156, 282 A.2d 94, 96 (1971) relied upon this in contending that the Baltimore City practice of 'a removal from one court in Baltimore to another doe......
  • Hovnanian Land Inv. Group Llc v. Annapolis Towne Ctr. At Parole Llc.
    • United States
    • Maryland Court of Appeals
    • July 20, 2011
  • Request a trial to view additional results

VLEX uses login cookies to provide you with a better browsing experience. If you click on 'Accept' or continue browsing this site we consider that you accept our cookie policy. ACCEPT