Price v. Nesbitt

• Decision Date: 25 June 1868
• Citation: 29 Md. 263
• Parties: JOHN O. PRICE, RICHARD PADIAN and SOLOMON ARMSTRONG v. ANNE NESBITT, ALEXANDER D. BROWN, and others.
• Court: Maryland Court of Appeals

29 Md. 263

JOHN O. PRICE, RICHARD PADIAN and SOLOMON ARMSTRONG v. ANNE NESBITT, ALEXANDER D. BROWN, and others.

Court of Appeals of Maryland

June 25, 1868

APPEAL from the Superior Court of Baltimore City.

The cause was submitted to STEWART, BRENT, MILLER, ALVEY and ROBINSON, J.

Arthur W. Machen and Richard J. Gittings for the appellants.

I Nevett Steele, for the appellees.

BRENT J., delivered the opinion of the Court.

This suit was instituted in the Circuit Court for Baltimore county, and upon the application of the plaintiff's lessors, that Court passed an order, on the 19th day of April, 1863, directing its removal to the Superior Court of Baltimore city. The record prepared by the clerk for transmission to the Superior Court, in obedience to that order, is signed and attested by him on the 3d day of September, 1863. The next step in the case is taken in the Superior Court, on the 14th day of the same month, by Price one of the defendants, who on that day filed a suggestion, supported by affidavit, that he cannot have a fair and impartial trial in that Court, and asking for its removal "to any Circuit Court authorized by the Acts of Assembly." This application was made at the same term in which the case was transmitted to that Court, and in a few days after the filing of the record. The plaintiff's lessors filed an answer, not until the 14th day of October, 1865, resisting the application, and thereupon the Court passed an order "that the suggestion of the defendant for the removal of this cause be and the same is overruled." From this order the present appeal is taken.

Pending this application the Constitution of 1864, intervened, and under it the law in regard to the removal of causes was materially changed. As the decision of the Court below was governed by the law as it was at the time of the decision and not as it was when the application was made, it is necessary to look only at the Act of 1865, ch. 187, to determine whether or not there was error in its ruling. This Act, after providing for the removal of causes from the Courts in which they were instituted, made a further provision for the removal of a cause, at the instance of the other party, from the Court to which it had been sent, "to such other Court in the same or any adjoining Circuit having jurisdiction, as the said Court should think would best tend to justice between the parties to the suit." In this case, the removal could not have been to a Court in the same Circuit, for Baltimore city formed one of the Judicial Circuits of the State, and even if the application was held not to extend to the locality, there was no other Court in that Circuit having jurisdiction over a case such as is disclosed in this declaration. This Court in Raab vs. The State, 7 Md. Rep., 483, after a very careful and extended examination into the question of boundary lines between Anne Arundel and Baltimore counties, determined that Baltimore county was the only county adjoining Baltimore city. As Baltimore county, also, alone composed another of the Judicial Circuits of the State, it was therefore the only Circuit adjoining Baltimore city, and under the restrictive terms of the Act was the only county to which the case could have been removed. It had already been removed from that county, because in the judgment of a Court of competent jurisdiction, a fair and impartial trial could not be had there. To have returned it to that county for trial would have been the merest mockery. The ruling of the Court below was, therefore, under the law as it then stood, right and proper.

It has been urged, however, in the argument, as the law of 1865 has been changed and...