Weiskittle v. State, to Use of Samuel
| Decision Date | 13 March 1882 |
| Parties | ANTON WEISKITTLE v. THE STATE OF MARYLAND, use of RACHEL SAMUEL. |
| Court | Maryland Court of Appeals |
APPEAL from the Court of Common Pleas.
This action was instituted on the 13th of September, 1880, in the Court of Common Pleas by the appellee against Anton Weiskittle and Anton Weiskittle, Jr., to recover damages for the killing on the 23rd of July, 1880, of an infant child of the equitable plaintiff, Rachel Samuel, a widow. Said killing was alleged to have been the result of the negligence of a servant of the defendants in driving a wagon of such defendants over said child. The defendants appeared and pleaded non cul. and issue was joined thereon. On the 17th of February, 1881, the appellant, one of the defendants, filed a suggestion and affidavit for the removal of the case to some other Court of a different circuit for trial. The Court (BROWN, J.,) thereupon, on the same day passed an order directing the record of proceedings in the case, to be transmitted to the Superior Court of Baltimore City for trial. On the 9th of April, 1881, the appellant filed a petition, praying the Court to strike out said order and to pass another directing the case to be sent to some other Court of a different circuit, for trial. The Court overruled and denied the prayer of the petition.
From the order of the 17th of February, 1881, directing the removal of the case to the Superior Court of Baltimore City and from the action of the Court denying the prayer of the petition, this appeal was taken.
The cause was argued before BARTOL, C.J., STONE, MILLER, IRVING and RITCHIE, J.
Thomas R. Clendinen, for the appellant.
M. Starr Wiel, and Albert Ritchie, for the appellee.
Two questions have been presented in this record for our consideration.
1st. Whether a party in a civil action has, since the amendment made to the Constitution, by the Act of 1874, chap. 364, the right to remove his case to a different circuit, if he should so elect?
2nd. Whether a removal of the case from the Court of Common Pleas to the Superior Court of Baltimore City, is a removal "to some other Court," as provided for by sec. 8 of Art. 4 of the Constitution?
It is enough for the purpose of this decision to say, that none of the Constitutions that have been in force in this State, ever gave to the party seeking the removal of his case, the right to determine that it should go to a different circuit, except the Constitution of 1867. That Constitution did give the party applying for a removal, the unrestricted right to have his case removed to a different circuit, if he should so elect.
After an experience of seven years it was found that the 8th section of the 4th Article of the Constitution of 1867, (the section that relates to removals,) did not work well in practice, and it was amended by the Act of 1874, ch. 364, which was adopted by the people, and is now a part of the organic law. It is asserted in the preamble of that Act, that it was to "supersede and stand in the place of sec. 8th, of Art. 4." The whole subject of removals was dealt with in that Act, and the original section in the Constitution of 1867 entirely recast. In the amendment, the right of election contained in the original section was omitted, and we cannot doubt, upon either reason or authority, that such an omission operated as a repeal of this right of election, and that now it rests in the discretion of the Court, from which the removal is sought, to send the case to some other Court having jurisdiction, either within or without the circuit, as it may think best.
We may concede that a repeal of a statute by implication is not favored by law. But where a new statute is passed, which is declared in terms...
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... ... nonresident of Maryland and at the time of the service of the ... writ was in this state solely for the purpose of prosecuting ... and testifying in his suit, then being tried, in the ... of the state. Const. art. 4, § 8; Weiskittle v ... State, 58 Md. 155. In A. & George's Creek ... Consol. Coal Co. v. Md. Coal Co., 64 Md ... ...
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State, to Use of Samuel, v. Weiskittle
...subsequently removed to the Superior Court of Baltimore City, where, after the order of removal had been affirmed by the Court of Appeals, (58 Md. 155,) the filed an amended declaration, with an amended bill of particulars. The defendants filed four pleas. To the second, third and fourth pl......
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De Murguiondo v. Frazier
...Irving, J., delivered the opinion of the court. The question presented by this appeal is no longer open. It is settled by Weiskittle's Case, 58 Md. 155. case presented the identical question now raised, whether since the constitutional amendment of 1874, a party suggesting he could not have......
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Atlantic & G.C. Consol. Coal Co. v. Maryland Coal Co.
...Garrett county, it was equivalent to an election on the part of the appellant of that county in which to have the case tried. In Weiskittle's Case, 58 Md. 155, this decided that the right to elect whether a cause should remain in the circuit or be removed from it, (which the constitution of......