State, to Use of Ockerme v. Gittings

• Decision Date: 15 February 1872
• Citation: 35 Md. 169
• Parties: THE STATE OF MARYLAND, use of HENRIETTA OCKERME, v. JOHN S. GITTINGS.
• Court: Maryland Court of Appeals

35 Md. 169

THE STATE OF MARYLAND, use of HENRIETTA OCKERME, v. JOHN S. GITTINGS.

Court of Appeals of Maryland

February 15, 1872

APPEAL from the Court of Common Pleas.

This suit was brought by the appellant against the appellee, and the summons made returnable at the April return day, 1870 under the Act of 1864, ch. 6, secs. 1 and 2. The appellee was returned summoned. On the return day, which occurred on the 11th of the month, the appellee appeared in his own proper person, and was placed under rule to plead, within fifteen days thereafter. On the ninth of May following, being the first day of the May Term, 1870, the appellee moved for a non pros., claiming to be a resident of Baltimore county, which motion, on the 21st of May, was overruled. On the same day, the appellee appeared by attorney, and the appellant thereupon moved for a judgment by default for want of plea, and, simultaneously therewith, the appellee prayed for leave to plead. The appellant's motion for a judgment was overruled and the appellee granted leave to plead whereupon he filed a formal plea, to the jurisdiction of the Court, by his attorneys, who appeared for him. On the 28th of May, the appellant moved to strike out said plea and for a judgment by default; this motion was granted in so far as it related to the plea, but in so far as it related to the judgment by default, was overruled; and the Court, at the same time, rescinded its order of the 21st of May, 1870 overruling the motion for a non pros., and granted leave to the appellant to reply thereto, and, thereupon, on motion, by leave of the Court, the appearance of the appellee's attorney was stricken out. The appellant thereupon filed a replication, alleging that the defendant at the time of the institution of the suit, resided in the city of Baltimore, and claimed a jury trial of the issue thus presented. The Court passed an order directing the trial of the issue by a jury. From this order the defendant appealed. This Court dismissed the appeal, but stated in its opinion pronounced at the time, (vide 33 Md., 463,) that the Court of Common Pleas should have determined the matter in issue in a summary way, without the intervention of a jury. The defendant then proceeded in the Court below, on the 6th of May, 1871, to join issue on the plaintiff's replication. The plaintiff thereupon moved to strike out the motion of the defendant for a non pros. for the reason that it was not filed upon the return of the writ--this motion the Court overruled. The plaintiff then filed an affidavit, alleging that the defendant had a residence on St. Paul street, in the city of Baltimore, where he and his family resided at the time of the institution of the suit, and when the summons was served upon him--that his only place of business was in the city of Baltimore, where he had been found in almost daily attendance for several years. The defendant excepted to this affidavit, and the Court, (GAREY, J.,) for the reason that it had not been previously filed, and no notice of its contents had been given to the defendant, ordered that it be stricken out as having been filed improperly, and that it be not allowed as evidence. After hearing the testimony of numerous witnesses for the plaintiff, the motion for a non pros. was sustained, and the plaintiff thereupon appealed.

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

C. D. McFarland, for the appellant.

George H. Williams, for the appellee.

ALVEY J., delivered the opinion of the Court.

The order from which the present appeal was taken, non prossing the plaintiff's case, presents no question to this Court for review. It was passed upon oral evidence taken in Court, and there was no exception taken to present to this Court the evidence upon which the Court below acted. It is impossible, therefore, for this Court to determine whether the judgment complained of was warranted by the facts of the case or not. If an exception had been taken, as might well have been done, it would have been the right of the plaintiff to have her case reviewed by this Court. But as the facts are not before us, of course we can have no judgment in regard to them.

There is one question, and one only, that would seem to be properly presented here by this appeal, and that is,...