State, for Use of Dunnigan v. Cobourn

Decision Date18 June 1935
Docket Number44.
Citation179 A. 512,169 Md. 110
CourtMaryland Court of Appeals

Appeal from Circuit Court, Cecil County; J. Owen Knotts and Thomas J. Keating, Judges.

Action by the State of Maryland, for the use of Corrine C. Dunnigan surviving widow, and Nadine C. Dunnigan and Wade C. Dunnigan surviving infant children of Scott Preston Dunnigan deceased, against Frederick Lee Cobourn and another administrators of Reese M. Bowman, deceased. From an order of the circuit court of Cecil county remanding the action to the circuit court of Harford county, plaintiffs appeal.

Reversed, and cause remanded.


Edwin H. W. Harlan, of Bel Air, for appellants.

John S. Young, of Bel Air, for appellees.

PARKE Judge.

Scott Preston Dunnigan was hurt through the alleged negligent operation of an automobile by one Reese M. Bowman, and shortly died in consequence of his injury. He was survived by a widow and infant children. The tort-feasor having died, an action was brought in the circuit court for Harford county in the name of the state of Maryland, for the use of the surviving widow and infant children, against the duly appointed and qualified administrators of the tort-feasor to recover damages for the death of Dunnigan. A declaration was filed with the institution of the action, and the defendants were summoned. An appearance for the defendants was entered by an attorney, who filed the general issue plea that the intestate had not committed the wrong alleged. Some days later, the defendants in proper person filed a petition praying that the court pass an order striking out the appearance of the attorney and the plea on the ground that the attorney had acted without authority. The court passed an order on this petition setting the matter down for a hearing. The attorney filed an answer which asserted his appearance and plea were pursuant to the terms of his employment by the defendants. On the same day, but after this answer was filed, the plaintiff made a suggestion for removal, and the next day the court passed thereon its order which directed that the record be transmitted to the circuit court for Cecil county for trial. The record was so sent.

After the record had been received, the administrators, in proper person, filed in the circuit court for Cecil county a petition in which is set forth the controversy over the authority of the attorney to appear and plead for the defendants; and the removal of the action before the matter of representation had been determined, and the desire of the defendants to employ other counsel to appear for them in their capacity as the personal representatives of the alleged wrongdoer. The petition further stated that it was uncertain whether the court to which the action had been removed would be able to determine the matter of the right of the attorney to act for the defendants before the time for pleading by the defendants would expire, and requested an order of court extending the time for pleading. The circuit court for Cecil county passed the desired order, and extended the time for the defendants to file other pleadings to five days after a decision on the dispute of the right of the attorney to represent the defendants. Without waiting for this determination, the defendants, in proper person, filed a demurrer to the declaration.

No further proceeding was had until two months later when the court, on its own motion, passed an order remanding the action to the circuit court for Harford county. The appeal brings up for review this order of the court.

1. The right of removal is conferred by article 4, section 8 of the Constitution of Maryland, and its denial or abridgment is ground for direct appeal. Griffin v. Leslie, 20 Md. 15, 19, 20; Negro Jerry v. Townshend, 2 Md. 274, 277; Wright v. Hamner, 5 Md. 370, 375; Kimball v. Harman, 34 Md. 401, 407; McMillan v. State, 68 Md. 307, 308, 309, 12 A. 8; Seth v. Chamberlaine, 41 Md. 186, 195; Gittings v. State, 33 Md. 458, 462; Condon v. Gore, 89 Md. 230, 234, 42 A. 900; Tidewater Portland Cement Co. v. State, 122 Md. 96, 99, 89 A. 327.

2. The nisi prius court of Cecil county was of the opinion that the right of removal from the circuit court for Harford county did not exist until the pleadings had raised an issue of fact to be submitted to the jury. In this ruling there was error. The right of removal is liberally construed. Price v. Nesbitt, 29 Md. 263, 266; Cooke v. Cooke, 41 Md. 362, 367.

There is nothing in the constitutional provision to support the narrow construction that the cause must have progressed in the pleadings to an issue of fact before the court may pass an order authorizing the removal. Constitution, art. 4, § 8. The statute, which was passed in pursuance of the mandate of the Constitution that the General Assembly should make such modification of existing law as might be necessary to regulate and give force to the provision, is, with respect to the right, in the words of the Constitution. Code, art. 75, § 109. The Legislature, however, has no power to abridge the constitutional guaranty. Gardner v. State, 25 Md 146, 152; Price v. Nesbitt, 29 Md. 263, 266. In every action or suit at law that is pending in any court of original jurisdiction, the right of removal exists, provided the party suggests in writing, under oath, that he cannot have a fair and impartial trial in the court in which the action or suit is pending. Deford v. State, 30 Md. 179, 196. The appeal of Griffin v. Leslie (1863) 20 Md. 15, was decided when the Constitution of 1851, art. 4, § 28, was in effect. Except for the grant of the privilege of removal in the now obsolete petition of a slave for freedom, the proceedings in which the right of removal is conferred were the same in the Constitution of 1851 as they are in the subsisting amendment to the Constitution of 1867. Constitution of 1851, art. 4, § 28; Niles on Constitutional Law, p. 420. Not only was there a practical identity of the provisions of the Constitution of 1851 with those now in effect, but the facts are analogous. In the appeal of Griffin v. Leslie, supra, suit had been brought under the Speedy Judgment Act of Baltimore City (Acts 1858, c. 323). Under the act the defendant was required to plead in certain cases by a prescribed time after service, and, in case of default, a judgment would be entered, without trial, and extended by the court. The defendant in Griffin v. Leslie, supra, was summoned, and, before pleading and before the expiration of the time for pleading, the defendant appeared and filed his suggestion in writing, under oath, that he could not obtain a fair and impartial trial in the court where the suit was pending. The nisi prius court refused to remove the cause because the defendant had not pleaded, and proceeded to enter a final judgment for want of a plea. On appeal by the defendant, it was held that the nisi prius court erred. This court said: "The conditions prescribed by the Constitution and Acts of Assembly for the exercise of this right, being complied with by the party applying for it, there is no discretion in the tribunal to which it is made, to decide whether the application shall be granted or not." 20 Md. 15, page 18. And later in the opinion, Bowie, C.J., wrote thus for the court: "If made before plea or issue,...

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1 cases
  • State, for Use of Dunnigan v. Cobourn
    • United States
    • Maryland Court of Appeals
    • November 12, 1936
    ...on the brief), for appellees. JOHNSON, Judge. This is the second time this case has come before us. In the first appeal, reported in 169 Md. 110, 179 A. 512, we dealt with the right of the equitable plaintiffs to exercise their constitutional right of removal, without regard to whether any ......
1 books & journal articles
    • United States
    • Maryland State Bar Association Appellate Practice for the Maryland Lawyer: State and Federal (MSBA) (2023 Ed.)
    • Invalid date
    ...Md. 141, 142, 265 A.2d 236, 237 (1970); Greenberg v. Dunn, 245 Md. 651, 653, 227 A.2d 242, 243 (1967); State ex rel. Dunnigan v. Cobourn, 169 Md. 110, 113, 179 A. 512, 514 (1935).[307] See Old Cedar Dev. Corp. v. Jack Parker Constr. Corp., 320 Md. 626, 630-33, 579 A.2d 275, 277-78 (1990); P......

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