State ex rel. Murray v. Cherry Heights Realty Co.

4 Balt. C. Rep. 267

• Court: Baltimore City Court
• Decided: January 23, 1924
• Status: Published

Opinion

FRANK, J.

The motion to remand this case to the Circuit Court for Baltimore County will be overruled. The suggestion of removal is made by two of the equitable plaintiffs. The tliird equitable plaintiff neither joins in the suggestion, nor objects thereto. Under these circumstances, the assent of the third equitable plaintiff, Daniel Murray, must be presumed, and tlie application must be taken as made on behalf of all of the equitable parties plaintiff.

Cooke vs. Cooke, 41 Md. 362 at p. 369; State vs. Gore, 32 Md. 498 at p. 499.

It is true that tlie name of the legal plaintiff, the State of Maryland, was omitted from (.lie suggestion of removal, but it would be a highly technical holding to rule that the failure of the equitable plaintiffs to use the State, which they had the complete right to use, and which could be immediately done upon a remand, could operate to defeat the valuable eonstitntional right of removal.

The case of Baltimore Co. vs. U. R. & Electric Co., 99 Md. 87, relied on by the defendant., is readily distinguishable from the present case. In that case one of the defendants protested against, and opposed the removal, so that no inference of assent was possible.

The demurrer to the declaration will be overruled on the authority of Le Strange vs. State use of Roahe, 58 Md. 26. The right is given to the defendant to plead within fifteen days.