Buckingham v. Davis

Le Grand, C. J., delivered the opinion of this court. Nimrod Buckingham, the plaintiff below, on the 3rd day of December 1849, instituted in Carroll county court an action of trespass q. c. f., against the defendant, now appellee. The ³²⁷ defendant appeared in the court below, by his counsel, and pleaded not guilty, and took defence on warrant. The case then was continued from term to term, until the first Monday of April 1852, at which term of the court the Hon.

Madison Nelson presided as circuit judge, under the provisions of the present constitution; at which term of said court the defendant, by his counsel, moved the court that a warrant of resurvey issue in this case, the plaintiff having neglected to cause one to be issued, and a warrant of resurvey was issued accordingly. The sheriff and surveyor executed said warrant, and made return thereof to the circuit court, at the April term 1853, with plots, certificates and depositions. The plaintiff in the' court below then appeared, and prayed to amend the plots and certificates so returned, and to add thereto, if necessary, by the first Monday of the next September term, which prayer was granted by the court. At this state of the case the circuit judge announced to the clerk, and parties, that he considered himself disqualified from sitting to try the cause, by reason of having been of counsel in the case; whereupon the clerk of the said court, on the 3rd day of June 1854, gave notice to the Hon.

Nicholas Brewer, judge of the circuit court for the second judicial circuit of this State, that the Hon. Madison Nelson was disqualified from sitting to try said cause, and, on the 28th day of August 1854, the Hon. Judge Brewer, in due form of law, nominated and appointed Thomas Donaldson, Esq., a special judge to try said case, who accepted the appointment, and qualified according to law. At April term 1855 of the said circuit court, the case came on for trial before the special judge, and the verdict of the jury was for the defendant.

At the trial, the plaintiff, by his counsel, moved the court to strike out of the record, and consider as a nullity, all proceedings in the case which had been had in the case since the April term of 1852, inclusive of that term and previous to the September term 1854, upon the ground that such proceedings were a nullity, for want of jurisdiction in the court, under the clause of the constitution, which provides, that a judge of the circuit shall not sit in a cause in which he had acted as counsel. The court refused the motion and the plain ³²⁸ tiff excepted. This constituted the first bill of exceptions of the plaintiff. He took three others, but they embrace precisely the same question, and nothing more, than that contained in the first.

The only question involved in the case grows out of the interpretation which the 22nd section of the 4th article of the constitution ought to receive. It provides that: “No judge shall sit in any case wherein he may be interested, or where either of the parties may be connected with him by affinity, or consanguinity, within such degrees as may be prescribed by law, or where he shall have been of counsel in the case; and whenever any of the judges of the circuit courts, or of the courts of Baltimore city, shall be thus disqualified, or whenever, by reason of sickness, or any other cause, the said judges, or any of them, may be unable to sit in any cause, the parties may, by consent, appoint a proper person to try the said cause, or the judges, or any of them, shall do so when directed by law.” It will be