Yoe v. Gelston
| Decision Date | 20 December 1872 |
| Citation | 37 Md. 233 |
| Parties | BENJAMIN R. YOE v. HUGH GELSTON. |
| Court | Maryland Court of Appeals |
Appeal from the Court of Common Pleas of Baltimore City.
The case is fully stated in the opinion of the court.
The cause was argued before BARTOL, C.J., BOWIE, MILLER, ALVEY and ROBINSON, JJ.
Patrick McLaughlin, for the appellant.
Isaac D. Jones, for the appellee.
This suit was instituted by the appellant in the Court of Common Pleas on the 6th of March, 1871, the summons was returnable to the second Monday of that month, being one of the return days fixed by the Local Code relating to the City of Baltimore, Art. 4, sec. 161, as amended by the Act of 1864 ch. 6, and was duly returned "summoned."
The record states that the defendant being called, appears by his attorney, Isaac D. Jones, Esquire.
Afterwards on the 15th of June in the same year, which was during the succeeding May Term, the declaration was filed, and a copy thereof was served on the appellee's counsel the same day, with the notice, "that on the day of the filing of the declaration, a rule would be entered requiring him to plead to the declaration within fifteen days thereafter."
On the back of the declaration was endorsed as follows:
Afterwards, on the 12th of September, 1871, the defendant, by his attorney, filed a motion for a judgment of non pros., on the ground of non-residence of defendant; a demurrer was filed thereto, which was sustained by the court. Whereupon the defendant, by his attorney, prayed leave of the court to file an amended motion for judgment of non pros., which was granted, and, on the 14th of October in the same year, the amended motion was filed, averring in proper form that the defendant was a resident of Baltimore County, and that no summons had been issued against him and returned in said county, before the issuing of the writ in this cause; this was verified by the affidavit of the defendant filed therewith.
Whereupon the court ordered a judgment of non pros., and the plaintiff appealed.
The Code, Art. 75, sec. 87, provides that "no person shall be sued out of the county in which he resides, until the sheriff or coroner of the county in which he resides shall have returned a 'non est' on a summons issued in such county."
The appellee was entitled to claim the benefit of this statutory exemption; and according to the practice in this State, he was at liberty to avail himself of his privilege, either by plea, or by a motion addressed to the court. Hamilton v. State, 32 Md. 348; Gittings v. State, 33 Md. 458, and 35 Md. 169.
It is also settled by those cases, that a party may make this defense either in person or by attorney, the appearance by attorney for that purpose not being a waiver of the exemption. Gittings v. State, 35 Md. 173.
The only question therefore, which is open on this appeal, is whether the motion was made in time. In Gittings v State, this court said the same limitations must apply to motions of this kind, as...
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