Seth v. Chamberlaine

• Decision Date: 03 December 1874
• Parties: LOUISA F. SETH and JOHN H. LOWE, Executors of JAMES M. SETH v. JOSEPH E. M. CHAMBERLAINE, Executor of SAMUEL T. HOPKINS.
• Court: Maryland Court of Appeals

41 Md. 186

LOUISA F. SETH and JOHN H. LOWE, Executors of JAMES M. SETH v. JOSEPH E. M. CHAMBERLAINE, Executor of SAMUEL T. HOPKINS.

Court of Appeals of Maryland

December 3, 1874

APPEAL from the Circuit Court for Dorchester County.

This suit was originally instituted on the 12th May, 1870, in the Circuit Court for Talbot county, by Samuel T. Hopkins against the appellants, as executors of James M. Seth, to recover the sum of $10,000 for services alleged to have been rendered to their testator by the plaintiff. After various proceedings, which for the purposes of this appeal need not be stated, John H. Lowe, one of the defendants, on the 15th of May, 1871, filed a suggestion and affidavit for the removal of the cause to some other Court in the same Circuit for trial, and thereupon the Court, on the same day, passed an order, which was entered upon the docket by the Clerk directing a transcript of the record and proceedings, to be transmitted to the Circuit Court for Caroline county. On the following day, on motion of the defendants, and with the consent of the plaintiff, and by order of the Court, the case was re-instated upon the records of the Circuit Court for Talbot county; and on the 25th of the same month, the defendants, by leave of the Court, withdrew the suggestion and affidavit for a removal.

Other proceedings were had, and the case was continued to the November Term, 1871. On the 20th of November, 1871, John H Lowe, one of the defendants, filed another suggestion and affidavit for the removal of the cause, and motion was made by his attorney for its removal to some Court out of the Circuit. This motion was resisted, and after argument, the Court ordered the cause to be removed to the Circuit Court for Anne Arundel county for trial; whereupon, the record was transmitted to the Clerk of said Court, and filed therein. On the 1st of May, 1872, upon the suggestion and affidavit of the plaintiff, the Circuit Court for Anne Arundel county ordered the record of proceedings in the cause to be transmitted to the Circuit Court for Dorchester county for trial; whereupon, the Clerk of the former Court transmitted to the Clerk of the latter, the original transcript of record, as received by him from the Clerk of the Circuit Court for Talbot county, together with the original suggestion and affidavit and order thereon, filed in the Circuit Court for Anne Arundel county, for removal to the Circuit Court for Dorchester county, but without any certificate under seal of the Clerk of the Circuit Court for Anne Arundel county, accompanying the same; that they were truly taken and copied from the record of proceedings in the last named Court.

At the November Term, 1872, of the Circuit Court for Dorchester county, the death of the plaintiff, was suggested, and his executor, the appellee, made party plaintiff. Subsequently on the 30th April, 1873, the defendant, John H. Lowe, moved to dismiss the case, upon the ground that there was no transcript of the record and proceedings in the Circuit Court for Dorchester county, transmitted from the Circuit Court for Anne Arundel county, which motion the Court overruled; and on the 30th of July, 1873, upon the petition of the plaintiff ordered the papers in the case to be returned to the Clerk of the Circuit Court for Anne Arundel county for correction and amendment.

The defendants excepted to the action of the Court in overruling the motion to dismiss, and in granting the petition of the plaintiff. On the 8th of August, 1873, the papers in the cause were transmitted to Anne Arundel, and on the 20th of the same month, the amended transcript was returned to the Circuit Court for Dorchester county; the case was subsequently set for trial at the April Term, 1874, of said Court; but on the 5th of January, 1874, the plaintiff moved the Court to remand the record of proceedings to the Circuit Court for Caroline county, for want of jurisdiction and authority in the Circuit Court for Talbot county to re-instate the said cause on its records, and to order the removal thereof to the Circuit Court for Anne Arundel county; and for want of jurisdiction in the Circuit Court for Dorchester county to entertain, hear and decide the same. The Court thereupon, being satisfied that jurisdiction of the cause resided in the Circuit Court for Caroline county ordered on the 27th of January, 1874, that the record of the cause "as it came to this Court originally from the Circuit Court for Anne Arundel county, be and the same is hereby remanded to the Circuit Court for Caroline county." The defendants excepted and prosecuted this appeal.

The cause was argued before BARTOL, C.J., BOWIE, BRENT, MILLER and ALVEY, J.

Thos. W. Hall, Jr., for the appellants.

The question involved being one of jurisdiction, and having been decided adversely to maintaining the proceedings in the Court below, it is preliminary to all other questions, and the appeal is, therefore, rightly taken. See Kimball vs. Harman & Burch, 34 Md., 406; State, &c. vs. Gore, 32 Md., 498; Price vs. Nesbitt, 29 Md., 264; Griffin vs. Leslie, 20 Md., 15; Wright vs. Hamner, 5 Md., 370; Negro Jerry vs. Townshend, 2 Md., 275.

The first suggestion and affidavit for removal by the defendant did not oust the jurisdiction of the Court in Talbot. The right of removal--to change the venue--is given by the Constitution for the benefit of the party making the application. Circumstances may arise which may make this resort unnecessary or undesirable. The party asking for the removal may change his mind. By permitting him to withdraw his suggestion and affidavit, and revoking the order passed for his benefit, no harm is done, and convenience as well as justice may be promoted. In this case no formal order for removal appears to have been passed. No record was transmitted, no transcript made up for transmission; before anything was done the defendant changed his mind, and with the consent of the plaintiff the Court re-instated the cause. It is not a case in which there is no locus p nitenti for Court or parties. Manly vs. The State, 7 Md., 147-8; Mayor, &c. vs. Co. Com'rs, 19 Md., 564.

The Act of 1874, chapter 94, in this respect, is declaratory only. In its preamble its purpose is shown to be the removal of all " doubt," s to the power of a Court after passing an order for the removal of a cause, to entertain a motion to strike out said order. The only amendatory features of the Act are the new conditions inserted, under which such power to strike out shall be exercised, and the provision in regard to the payment of costs. The preamble of an Act may be properly looked to in explanation of its scope and purpose; it is a key to its construction and to the mind of the Legislature. The Mayor, &c. vs. Moore & Johnston, 6 H. & J., 382; Canal Co. vs. R. R. Co., 4 G. & J., 1.

If the opposite view should prevail, and the control of the Circuit Court in Talbot county over the cause, and over its own informal order passed therein, but not executed, should be considered to have ceased from the moment the transcript was directed to be sent to Caroline, although never in fact transmitted, what shall be said of all the subsequent proceedings in the cause--in Talbot, in Anne Arundel and Dorchester--by which the cause has been regularly advanced, issue joined and new parties made, during a period of over three years? Whence arises the authority in the Circuit Court for Dorchester county to remand a cause which, according to the theory of its own order is coram non judice in that Court, to the Court in Caroline? Is it the province of the Court in Dorchester to carry out the unexecuted order of the Court in Talbot? And what is the record which is to be transmitted, if all subsequent proceedings in all Courts, from the date of the first order of removal in Talbot county, are nullities? Further, if the record be coram non judice in Dorchester, for the purpose of trial, was it not equally so for the purpose of amendment? And did not the Court below err, therefore, in overruling the motion of the defendant to dismiss the case, and in granting the petition of the plaintiff to have the papers in the case returned to the Clerk of the Circuit Court for Anne Arundel county, for correction and amendment.

Charles F. Goldsborough and Philip F. Thomas, for the appellee.

The order passed by the Circuit Court for Talbot county, upon the suggestion and affidavit of the defendant, directing the transmission of a transcript of the record and proceedings in the cause to the Circuit Court for Caroline county, was valid, having been entered upon the docket by the Clerk, by the authority and direction of the Court while in session. It was not necessary that it should have been written out at length, and signed by the Judges. The Clerk is the amanuensis of the Court, and every entry made by him, under its direction, is the Court's order. The order, once passed was not only valid,...