Mears v. Remare

34 Md. 333, 1871 Md. LEXIS 61

• Court: Court of Appeals of Maryland
• Decided: May 11, 1871
• Status: Published

Opinion

Alvey, J.,

delivered the opinion of the Court.

The motion to rescind the order of this Court of the 14th of April, 1871, quashing the writ of restitution issued by the clerk, upon the application and direction of the attorney of the appellant, Mears, must be overruled. The writ of restitution was not only irregularly issued, but was simply void for want of a judgment in this Court upon which it could be founded.

The case was originally brought here by an appeal from the judgment of the Baltimore City Court, rendered in the case of an appeal from the judgment of a justice of the peace to that Court; and the only question upon which the appeal could be maintained in this Court, was the one of jurisdiction of the City Court to hear and decide the case, without due and legal notice, such as the law prescribed to be given to the appellee in such cases. That was the only question for review in this Court, and was the only one that was decided. The merits of the controversy between the parties were not before us, and could not, therefore, be passed upon. The reversal of the judgment appealed from was simply because it had been rendered without due notice; and upon such reversal the case was left standing in the City Court precisely as if no trial had occurred in that Court, and it was competent to the appellant in that Court to proceed to give the legal notice to the adverse party, and thereupon proceed to trial in the usual way. Upon the determination of the question of jurisdiction by this Court, there was no other judgment entered than that of reversal simply; as we supposed that the effect of the reversal on such a question would be well understood by all concerned. To obviate all further misunderstanding upon the subject, however, we shall now order the cause to be remanded, that it may be proceeded with in the City Court, as if no trial had ever taken place there.

(Decided 11th May, 1871.)

As we have said, the judgment of this Court was simply that of reversal, and no restitution was awarded, for the obvious reason that we had not the merits of the controversy before us, and had no power or jurisdiction to pass upon them ; and the writ of restitution is always founded upon the special award of the Court. 2 Tidd’s Practice, 1033, 1186; Ad. on Eject., 252; Klinefelter’s Lessee vs. Carey, 3 Gill & John., 349, 355. And such being the case, most clearly, the clerk, upon the mere direction of the attorney, had no power or authority to issue such writ, without the previous award of the Court. If, by the practice of the English Courts, a Judge at Chambers has no power to award such writ, as would appear to be the case, much less can it be supposed that the clerk of the Court can do it. Williams vs. Williams, 2 Ad. & Ell., 381; Ad. on Eject., 252.

Motion to rescind overruled, and cause remanded for further proceedings.