Baltimore & Ohio Railroad v. Waltemyer ex rel. Ensor

Bowie, J., delivered the opinion of the Court. This is an appeal from a judgment of the Circuit Court of Baltimore County, reversing a judgment of a justice of the peace. ³³⁰ Waltemyer, the appellee, sued the Baltimore and Ohio Rail Road Company in a plea of damages, by warrant issued on the 3rd of August, 1874, and returnable before a justice of the peace on the 11th instant. The warrant was served on the 25th of August, 1874, the justice rendered a judgment of non pros., and that the plaintiff pay the costs, amounting to $3.50. From this judgment the plaintiff prayed an appeal on the 3rd September, 1874, to the Circuit Court.

The appeal was docketed in the Circuit Court, summons issued, and the appellee, the Baltimore and Ohio Rail Road Company, on the 7th of March, 1876, laid a rule security for costs on the appellant. On the 16th May, 1876, the cause was tried before the Court, and the judgment below reversed, and judgment entered for the plaintiff helow, for sixty-five dollars, with interest from date and costs. On the 17th of May, 1876, the defendant below, the Baltimore and Ohio Rail Company, moved to strike out the judgment for various reasons assigned, and to be assigned, and filed affidavits in support of said reasons. The principal reasons relied on are, that at the time the cause was tried in the Circuit Court, there was a rule security for costs outstanding and not complied, with, and that the costs which had been incurred before the .magistrate were not paid.

The docket entries contained in the record show the rule laid on the 7th of March before the trial, and do not show any compliance therewith. The affidavits filed hy the appellant to show the laying of the rule security for costs, and non-compliance therewith, and the non-payment of the costs which accrued before the justice, are not controverted. It is contended on behalf of the appellant, that the action of the Circuit Court, in proceeding to trial and judgment under these circumstances, was an exercise of ³³¹ unwarranted authority, — an excess of jurisdiction, which authorizes this Court to review and reverse the judgment of the Circuit Court. It needs no authority to sustain the position that if a Court of inferior jurisdiction assumes appellate power -in cases beyond its authority, the judgment may be reviewed and reversed in this Court.

Webster vs. Cockey, 9 Gill, 92 ; State vs. Mister, 5 Md., 11 ; Kinnear & Willis vs. Lee & Reynolds, 28 Md., 488 ; Mears vs. Remare, 33 Md., 249 , 250; Bell vs. Jones, 10 Md., 331 ; Herzberg vs. Adams, 39 Md., 309 . Without intending to decide that such a rule can be laid in appeal cases, the omission to enforce a rule security for costs before going to trial can scarcely be regarded as an error affecting the jurisdiction of the Court below. It might have been the result of inadvertence, or waiver. And in the absence of any apparent disposition of that rule on the record, the presumption must be it was waived, as one of the attorneys of the appellant deposes the attention of the Court was not called to it again before trial.

Spencer vs. Trafford, 42 Md., 18, 19 . The next objection arises from the alleged non-compliance by the Circuit Court of Baltimore County, with the provisions of Art. 5, sec. 50, of the Code, (as amended by the Act of 1867, ch. 164,) title “Appeals.” That section enacts “before any of the Circuit