Weber v. Zimmerman

• Decision Date: 04 May 1865
• Citation: 23 Md. 45
• Parties: WILLIAM H. WEBER and others, v. L. F. ZIMMERMAN.
• Court: Maryland Court of Appeals

23 Md. 45

WILLIAM H. WEBER and others, v. L. F. ZIMMERMAN.

Court of Appeals of Maryland.

May 4, 1865

APPEAL from the Superior Court of Baltimore city:

Motion to supersede and quash a peremptory writ of mandamus issued from this Court on the 29th of October 1864. The circumstances under which this motion comes before the Court at this time, are thus stated by BARTOL, J., in delivering the opinion of the Court:

" After this appeal was heard at the June Term, this Court affirmed the ruling of the Superior Court set forth in the bills of exceptions, and ordered the writ to be issued in the peremptory form. It was issued on the 29th day of October 1864, and made returnable to the December Term. By the change in the Constitution, which went into effect on the first day of November, the December Term was abolished; and by the Act of Assembly, passed at the last Session, a special Term was directed to be held on the 24th day of January 1865, to which all writs and process returnable to the December Term 1864 were made returnable. The defendants failing to return the writ, upon application to this Court, on the 1st day of March, a rule was laid upon them to make return of the same on or before the 7th day of March. That rule having been duly served, and its exigency not having been obeyed, the Court on the 8th day of March, directed an attachment for contempt to be issued against the parties, returnable on the 14th day of March. On that day the defendant, Weber, upon whom alone the peremptory writ had been served, appeared in person, and first having, by leave of the Court, upon solemn oath purged himself of the contempt alleged against him, was permitted to file in Court, by his counsel, a return to the writ, setting forth certain causes by which he alleged it had become impossible to execute the same; and thereupon motions were filed to quash and discharge the attachment, and also to quash and supersede the writ of mandamus. "

The following reasons were filed with the motion:

The appellant, Weber, upon whom alone the peremptory writ of mandamus issued in this cause has been served, now moves the Court that the same be superseded or quashed for the following reasons:

I. Because the appeal was taken by the appellants from the judgment of the Court below, which was merely a judgment for costs; that no writ of mandamus was ordered directed, adjudged or issued in the Court below; that upon the affirmance of said judgment upon the appeal of the appellants, if further proceedings were necessary, it was matter for a procedendo; and the issuing of an original writ in the Court above, was improvidently done, and that said writ should be therefore quashed.

II. Because it appears from the return and supplemental return of this appellant to said writ:

1st. That at the time when said return was made, a Court of competent jurisdiction, upon a bill filed alleging the same had by reason of matters happening since the judgment of the Court below, enjoined the said Zimmerman from entering the pulpit of said church, or from attempting to enter the same, or from in any manner interfering with or interrupting the pastor now in charge of said congregation, or that may be placed in charge during the pendency of the said proceedings, until the matters could be heard in equity, and which proceedings are yet pending and undetermined, and which the complainants are pushing with all possible speed, and in which the said appellee is chargeable with every effort to hinder and delay; and that the said appellant could not have obeyed the said peremptory writ of mandamus without violating the said injunction.

2nd. Because by the charter of the church, in these proceedings specified, no person can be the pastor thereof unless he be a member of the Lutheran Synod of Maryland, under whose jurisdiction the said church is by its charter managed; and that since the judgment of the Court below, the said appellee hath ceased to be a member of said Synod, and so incapable of being the pastor thereof.

3rd. Because the German Evangelical Lutheran St. Stephen's Church is not named in said writ of mandamus, nor in the petition therefor, nor bound by these proceedings; and that since the said judgment in the Court below, at the annual election of officers of said corporation, other and different persons were chosen by the said congregation than the defendants in said petition named; and that neither this appellant nor any of the said defendants are now officers thereof, and so are thereby utterly without power to obey said writ, without any fault on his or their part.

4th. Because by the happening, subsequently to said judgment, of the matters hereinbefore specified, the said writ has become nugatory, and would subject to actions those to whom it is directed, were they to attempt to execute it.

5th. Because the said appellee, in pressing for the execution of said writ, with full notice and knowledge of the circumstances aforesaid, is taking an unfair advantage of the decision of this honorable Court, and desires to perpetrate a fraud upon said decision, and upon the law.

6th. Because it will appear, by the inspection of the record of these proceedings, that the judgment was rendered in favor of said appellee by reason only of the informality of the notice convening the congregation of said church for the dismissal of said appellee as pastor thereof; and because it will appear that since said judgment, in strict conformity with the opinion of the Court below, the said congregation were again convened by a more formal and precise notice, and at such meeting the said appellee was formally and legally dismissed as such pastor.

7th. Because this Court will suspend and retain said writ, in the exercise of a sound discretion, until a trial of said subsequent events can be legally had and determined.

8th. Because, since the amotion of said appellee from the office of pastor of said congregation, and his ejection from said Synod as a member thereof, the Rev. ____ Heminghaus has been duly elected and installed as minister of said congregation, and is in the exercise of the functions and duties of said office.

9th. Because the execution of said writ would be nugatory, inasmuch as the relator has been ejected from his office, and is incapable of executing its functions by reason of his being no longer a member of the Lutheran Synod, and if restored, would be immediately removed again.

The cause was argued before BOWIE, C. J., and BARTOL, GOLDSBOROUGH, COCHRAN and WEISEL, J. George H. Williams, for the motion:

Mandamus, like an injunction, is under the control of the Court in every stage of its existence. In England it is regulated by practice of the Court. It is not like an execution. McClellan vs. Graves, 19 Md. Rep., 374.

This is a case for procedendo. The Act of 1858 is repealed in the Code. The Code, literally read, would deprive the Court of all discretion.

In England there can be but one return to a peremptory mandamus, viz., obedience. In Maryland we must modify the practice. Queen vs. Ledgard, 1 Adol. & El., 616, (41 Eng. C. L. Rep., 697.)

Objections to the validity of a peremptory mandamus, may with propriety be taken, though no excuse for non-obedience to the same will be received. State vs. Lehre, 7 Rich., 301. Tapping on Mand., 379. State vs. Jones, 1 Iredell, 129 and 414.

The writ should have been directed against the corporation, as such. Ang. & Ames on Corp., 451. Grant on Corps., 8 Law Lib., 355, marg. note a. Tap. on Mand., 321, (76 Law Lib., 7.) It is the duty of the Court to supersede the writ, if it be misdirected. Tap. on Mand., 336, 337. 6 Bac. Abr., 445, " " " Mandamus. "

Where a mandamus was served on late church wardens, it was sufficient to show that, at the time of service, they were not wardens.

The Stat. of 9 and 10 Vict., c. 113, protects persons from actions at law because of obedience to the writ of mandamus, but there is no such provision in the Code.

The petition was not against the corporation, but against Weber and others, whom it charges with trespass. The 3rd and 9th issues were the only ones before the Court in the original case, and the instruction as to them was, that the notice of the meeting was insufficient. The judgment of the Court below was only for costs; there was no judgment or order for a mandamus. This Court cannot alter the judgment of the Court below when it affirms, but only when it reverses, (Code, Art. 5, sec. 14,) unless a writ of mandamus is treated as an execution, which we say cannot be done. See also sec. 16, " Procedendo. "

The writ was served, as appears by the return, upon one of the defendants only. Since that time the petitioner has been regularly removed from the office of pastor, and expelled from the ministry by the Synod. The decision of this Court in the original case, was on the 29th of October 1864. The injunction in the Superior Court, on new matter, was made October the 31st, 1864. It further appears, from the supplemental return, that Weber and others had been superseded as trustees, and from that time could not obey the mandamus.

O. Miller, against the motion:

The writ of mandamus is not a term writ. In this instance it was made returnable at December Term 1864, and continued to January Term 1865, held by authority of a special Act; it might have been made returnable in twenty-four hours.

The reasons assigned for not obeying the writ are not sufficient. The bill for the injunction, although filed after, did not disclose what had been done in this Court.

The petition is in conformity with the decision in the case of Winemiller vs. Rumpler, 4 H. & McH., 431, 436. The allegation that the petitioner was a duly qualified minister, was no where traversed.

The...