Barnes v. Meleski

Henderson, J., by special assignment, delivered the opinion of the Court. This appeal is based on the alleged unconstitutionality of Section 118 of Article 75 of the Maryland Code (1951) which requires the party suggesting the removal of a case to another county to pay the costs to the clerk before the record is transmitted to the other county. The appellant (Barnes) had been sued in Anne Arundel County for $14,916.84 in January, 1955. He was duly summoned, the writ being returnable on the first Monday in February, which was February 7th.

On February 19th he filed a motion for a bill of particulars, which was complied with. Finally an amended declaration was filed, to which he filed on May 17th, 1955, pleas denying liability. Evidently the case was set for trial on November 22nd, 1955; and on November 18th, 1955, and not until then, he filed under oath his suggestion for removal. The case was ordered removed to the Circuit Court for Baltimore County that same day, ¹⁸⁴ and the next day his attorney was given a bill for the removal costs.

These were not paid, and on December 21st plaintiff’s counsel filed his petition stating the removal costs had not been paid, and requesting the removal order be stricken and the case placed on the trial docket of the Circuit Court for Anne Arundel County. On the petition an order was passed requiring Barnes to show cause on or before January 10th, 1956, why this should not be done. On January 6th Barnes filed an answer stating “the remedy sought in the petition and the order of Court subsequently passed on said petition are both unconstitutional and void.” The matter was submitted to the Circuit Court, and on January 23rd, 1956, an order was passed requiring the defendant to pay the costs for the removal of the case; and, should he fail to pay, the Clerk was ordered to place the case on the April Docket of the Circuit Court for Anne Arundel County. Not until February 20th did defendant enter his appeal, and it was not until April 17th that the record was certified by the Clerk of the Court.

It was filed in this Court on April 19th, 1956. It will be seen that the sole question attempted to be raised by this appeal is as to the constitutionality of Section 118 of Article 75 of the Code. This reads as follows: “The cost of transcript of record in all suits or actions at law, issues from the Orphans’ Court, or from any Court sitting in Equity, shall be paid to the clerk making the same, by the party suggesting such removal before the said record is transmitted.” It is contended on behalf of Barnes that an absolute right of removal is conferred upon him by the provisions of Section 8 of Article IV of the Constitution of Maryland, the pertinent parts of which read thus: “* * * in all suits or actions at law, * * * pending in any of the Courts of Law of this State having jurisdiction thereof, upon suggestion in writing under oath of either of the parties to said proceedings, that such party cannot have a fair and impartial trial ¹⁸⁵ in the Court in which the same may be pending, the said Court shall order and direct the Record of Proceedings in such Suit or Action * * * to be transmitted to some other Court having jurisdiction in such case, for trial; * * * and the General Assembly shall make such modification of existing law as may be necessary to regulate and give force to this provision.” He contends that, since an unqualified and absolute right of removal exists, Sec. 118 is an invalid restraint upon that right and therefore unconstitutional. And he cites as a controlling authority Hoyer v. Colton, 43 Md. 421 .

Since that case was decided, Sec. 8 of Art. IV of the Maryland Constitution has been amended, but the amendment did not change in substance that part dealing with the right of removal in civil cases (except it eliminated the right of the removing party to demand it be sent outside the circuit). Nor is Sec. 118 of Art. 75, requiring the payment in advance of removal costs, essentially different from what was then the corresponding section of the law. (Chap. 94 of the Acts of 1874). Therefore, it becomes necessary to study carefully Hoyer v. Colton, supra, which, under circumstances similar to those existing here, declared invalid Chapter 94 of the Acts of 1874.

The reason for the decision is set out in the opinion of Judge Robinson as follows: “Now the Act of 1874, ch. 94,