Gibbons v. Cherry

Miller, J., delivered the opinion of the Court. This appeal is from the refusal of the Court of Common Pleas, to strike out a judgment of condemnation rendered against the appellant as garnishee of Hugh Crolly. The only grounds for the motion relied on here, or of which any proof was offered in the Court below, are that the judgment was irregularly entered, and was obtained by surprise. The record shows that the appellee Cherry, on the 30th of May, 1867, issued an attachment on warrant in the-usual form, upon certain promissory notes of Crolly for $220.

The writ was returned by the sheriff on the same day, “laid in the hands of Stephen M. Gibbons, at one o’clock P. M., in presence of John Lloyd, and garnishee summoned.” On the same day the garnishee appeared by counsel, and was laid under a rule to plead. No plea was filed, and no further steps were taken in the case by either side until the May term, 1878, and the cause in the-meantime had been placed on the stet docket of the Court. In the early part of that term, and at different times ¹⁴⁷ during the term, the Judge gave notice that after he had completed the trial of cases on the trial docket, he would call the cases on the stet docket, and accordingly on the 10th of July, 1878, began the call of cases on that docket, and on reaching this case entered a judgment of condemnation by default for want of a plea. Row it is insisted that the notice thus given by the Judge, respecting the call and disposition of cases on the stet docket, was ultra vires, in conflict with the rule of Court on that subject, and consequently the disposition of the case, and the entry of the judgment in this mode was irregular, and for that reason the judgment ought to have been stricken out.

By the Rules adopted by the Supreme Bench of Baltimore City, for the conduct of business in the Superior Court, the Common Pleas, and the City Court, it is provided that the clerk at each term shall prepare a trial docket, and a stet docket, the latter of which shall 'contain all cases that have been twice called for trial and continued without affidavit, and not because of an outstanding commission; and in respect to cases on this docket, there is a rule which is set out in the record, to the effect, that if the assignment of cases on the trial docket for the day shall be disposed of before the usual hour of adjournment, the Court will proceed to.hear any cause on the stet docket, in which counsel on both sides shall be in Court ready to proceed to trial, and when two or more cases are in such condition, they shall he tried in numerical order. It is then provided that counsel in any cause upon the stet docket, may compel the opposite party to proceed to trial upon the first opportunity presented under the operation of the foregoing rules, by giving to such party five days’ notice in writing of his intention to call said case for trial on the first opportunity which shall occur after the expiration of said notice, and when thus called, it shall stand for trial as if it had been called in ¹⁴⁸ the regular assignment for the day ; but a case brought forward under such notice must be tried or disposed of when the opportunity for trial occurs, or the .party giving the notice will lose the benefit thereof, and the same case can only be brought forward again under the exigency of a new notice. It is conceded these are the only rules the Supreme Bench has ever adopted in reference to a stet docket, and the appellant’s counsel has contended that it is beyond the power of any one of the Judges of these several Courts, to make any rule, or adopt any order, or take any steps for the trial or disposition of cases that have once been placed on this docket, except in the mode prescribed by this rule. This argument is founded on the idea that the Constitution has invested the Supreme Bench with the sole and exclusive power of making rules regulating the conduct of business in these Courts.

It is true that the Constitution in establishing the jurisdiction, and prescribing the powers and duties of the Supreme Bench has declared {Art. 4, sec. 33,) that it shall have power, and it shall be its duty “ to make all needful rules and regulations for the conduct of business in each of said Courts, during the session thereof, and in vacation, or in chambers, before any of said Judges.” But we do not ascribe to this provision any such potency as counsel have contended for. The