Wilmer v. Mitchell
| Decision Date | 14 January 1914 |
| Citation | 89 A. 612,122 Md. 299 |
| Parties | WILMER v. MITCHELL. |
| Court | Maryland Court of Appeals |
Appeal from Baltimore City Court; Carroll T. Bond, Judge.
"To be officially reported."
Action by Edwin M. Wilmer against Annie G. Mitchell, executrix. From a judgment for defendant in the Baltimore city court on appeal from a justice of the peace, plaintiff appeals. Appeal dismissed.
Argued before BOYD, C. J, and BRISCOE, BURKE, THOMAS, PATTISON URNER, and CONSTABLE, JJ.
David Ash, of Baltimore, for appellant. N. Rufus Gill & Sons and Edward M. Hammond, all of Baltimore, for appellee.
The only question presented on this appeal is whether the Baltimore city court, sitting for the purpose of hearing appeals from justices of the peace of Baltimore city, had jurisdiction to hear and determine the case now before us when on appeal to that court. The question, we think, is free from difficulty, and is clearly answered by a statement of the facts set out in the record and the law bearing upon the subject.
The appeal to the circuit court was taken by the appellee from seven judgments of fiat rendered on November 22, 1900, in favor of the appellant against the appellee, as executrix of James H. Marriott, upon writs of scire facias duly issued by one David H. Lucchesi, a justice of the peace of Baltimore city, on seven judgments previously rendered against James H Marriott, in his lifetime.
It appears from the docket entries that on the 26th of February 1913, the appellant, Wilmer, moved the court to dismiss the appeal because the court was without jurisdiction to hear the case. This motion was overruled, the case was heard, and the following entry appears in the record: "26th of February, 1913, judgment reversed and judgment in favor of the defendant with costs." On the 28th of February, 1913, a motion to strike out this judgment was heard, and on the 26th of April, 1913, it was overruled.
It will be seen that appeals from any judgment rendered by a justice of the peace of Baltimore city to the Balthnore city court are provided by statute (article 5, § 86, of the Code) by any party aggrieved thereby, at any time within 60 days from the rendition of the judgment.
It has been repeatedly held that this court cannot review a judgment of the circuit court, on appeal from a justice of the peace, if that court had jurisdiction to hear the appeal and to review the judgment of the justice. Matthews v. Whiteford, 119 Md. 124, 85 A. 1040; Hendrick v. State, 115 Md. 560, 81 A. 18.
The appellant contends, that the Baltimore city court was without jurisdiction to hear and determine the case: First, because the judgment of fiat on the writ of scire facias is not a judgment within the meaning of section 86 of article 5 of the Code, and is not an appealable judgment; and secondly, because the appellee here and the appellant in the court below did not comply with section 95 of article 5 of the Code, relating to the payment of costs incurred on the judgment and proceeding before the justice, and did not file a sufficient appeal bond, as required by law.
As to the first objection, we need only say that it has been distinctly held by this court that a judgment rendered upon a scire facias is a valid and binding judgment, and falls within section 86 of article 5, providing for appeals from justices of the peace.
In Weaver v. Boggs, 38 Md. 264, Judge Miller, in delivering the opinion of this court, in speaking of the nature and office of the writ of scire facias, and the judgment founded thereon, said: "In this state it is clearly settled that, though it is a judicial process, yet it so far partakes of the nature of an action that the defendant may appear and plead to it in the same manner as to an action founded upon an original writ, and the judgment thereon is considered a new judgment, having all the attributes of the original, upon which the scire facias was founded." Mullikin v. Duvall, 7 Gill & J. 355; Johnson v. Lemmon, 37 Md. 336; ...
To continue reading
Request your trial