Griffin v. Leslie

20 Md. 15, 1863 Md. LEXIS 24

• Court: Court of Appeals of Maryland
• Decided: May 5, 1863
• Status: Published

Opinion

Bowie, C. J.,

delivered the opinion of this Court:

In this case, the defendant, the appellant, was returned “Summoned” to the January Term 1859, which began bn the second Monday of that month. He appeared by attorn noy, and on the 14th of January filed a suggestion in writing, supported by affidavit, that a fair and impartial trial could not he had in the Court where the suit was depending. On the 31st of January 1859, the Court refused to remove said cause, because no • plea with an affidavit had been filed as required by the Act of 1858, ch. 323, from which order refusing the removal, the defendant prayed afi-appeal. The Court below refused to allow the appeal to bb entered and the cause transmitted, hut proceeded tb enter final judgment for want of a plea; whereupon a second appeal was prayed and granted. The removal of causes from one county to another for trial, upon suggestion in writing supported by affidavit or other proper evidence, that a fair and impartial trial cannot be had in the county where such suit or action is pending, was and is deemed so essential to the impartial administration of justice, as to be guaranteed by the Constitution and Laws of this State, in all suits or actions at law, issues from the Orphan’s Court, or from any Court of Equity, petitions for freedom, presentments or indictments, Art. 4, sec. 28; 1854, ch. 325; Code, Art. 15, secs. 11, 12, 13. Notwithstanding the Constitution declares, “that such further remedy in the premises may be provided by law as the Legislature shall from time to time direct and enact,” this power has been, held to be a power to enlarge, not to restrain the exercise of the right. 5 Md. Rep., 370, Wright vs. Hammer.

“This clause of the Constitution was designed to secure-to parties, beyond the control of the Legislature, the general right to remove their causes under certain sjoecified conditions, but not to prohibit the Legislature from enlarging the right at any time.” Wherever and whenever the privilege has come under consideration, it has been construed liberally. The State vs. Dashiel, 6 H & J., 268. Cromwell vs. The State, 12 G. & J., 251. Negro Jerry vs. Townshend, 2 Md. Rep., 218.

“All laws for the removal of causes from one venue to another, were passed for the purpose of promoting the ends of justice, by getting rid of the influence of some local prejudice, which might operate detrimentally to the interests or the rights of one or the other of the parties to the suit.”

The conditions prescribed by the Constitution and Acts of Assembly for the exercise of this right, being complied with by the party applying for it, there is no discretion in the tribunal to which it is made, to decide whether the application shall be granted or not. The cases of Negro Jerry vs. Townshend, 2 Md. Rep., 275, and Wright vs. Hamner 5 Md. Rep., 375, show, that the appeal was taken from the remanding of the cause in the one case and the granting of the order of removal in the other, and entertained by the Court above without question. An order of the Court overruling the application, is unlike ordinary rulings on motions, such as motions for a new trial and other motions addressed to the discretion of the Court, from which there is no appeal; and unlike rulings in demurrers and other interlocutory judgments, where no appeal lies until final judgment; hut the refusal of the application for removal does finally settle a constitutional right of the party, the exercise of which, when demanded, is essential to the impartial administration of justice and should not be withheld or postponed.

The Act of 1858, ch. 323, entitled, “An Act for the despatch of business in the Superior Court and Court of Common Pleas of Baltimore City,” authorising the entering of judgments in certain cases on the first day of the stated term or rule-day after appearance, notwithstanding any pica, unless the plea be verified by affidavit, that “the defendant is advised by counsel, etc., that the matter of the plea constitutes a good defence, and that he verily believes he will he able at the trial of the cause to produce sufficient evidence in support of the plea,” was not designed to conflict with the right of removing causes.

It must be construed so as to harmonize with the Constitution, or if not susceptible of such construction, must yield to its superior force. The suggestion in writing supported by affidavit, etc., must bo made before or during the term at which the issue or issues may ho joined, or tinder special circumstances after issue joined in the suit or action. 1854, ch. 325; Code, Art. 75, secs. 71, 72, 73. If made before plea or issue, or after issue joined under the circumstances prescribed, there is no power in the Court to do more than order and direct the record and proceedings in such suit, to be transmitted to the Court of an adjoining county.

The appellant having filed his suggestion in the manuor and form presqribed by the Constitution and Acts of Assembly, the Court below erred in refusing to order tiro removal, and the subsequent proceedings were “coram non judice.”

(Decided May 5th, 1863.)

Judgment beloto reversed,. and procedendo awarded,.