Gittings v. State ex rel. Ockerme

Miller, J., delivered the opinion of the Court. The appellant was sued in this action in Baltimore city, and, wishing to avail himself of the provision of the Code, Article 75, section 87, that “no person shall be sued out of the county in which he resides,” until after a return of non est on a summons in that county, moved for a judgment of non pros, on that ground, and supported the motion by his affidavit, that, at the time of bringing this suit, he was and still is a resident of Baltimore county. The plaintiff filed a replication to this motion, denying its allegations, and applied for a jury trial of the issue thus presented. The Court, thereupon, passed an order granting the plaintiff’s application, and directing issues to be framed on the matters of fact alleged in said motion, for determination by a jury.

From this order the present appeal was taken, and the first question to be disposed of, raised by the motion to dismiss, is, whether the appeal was properly taken at this stage of the cause ? It is well settled, by numerous decisions of this Court, that no appeal in actions at law can be prosecuted until a decision has been had in the Court below, which is so far final as to settle and conclude the rights of the party involved in the action, or to deny to him the means of further prosecuting or defending the suit, as otherwise, by repeated appeals, litigation might be protracted to an almost indefinite period. Hence no appeal lies from rulings upon motions or demurrers or other merely interlocutory judgments or orders pronounced and passed in the progress of the cause, to final judgment. All errors committed by the Court below in these rulings or judgments, if properly presented by exception or in some other form, are open for review on appeal from that judgment.

But the appellant’s counsel, treating this order as, in effect, a refusal of his motion, which involves a question of jurisdiction, contends it constitutes an exception to the general rule, and forms a proper subject of appeal, like orders, removing or refusing to move, a cause for trial, or remanding a cause after it has once been removed. Cases, ⁴⁶² where appeals have been entertained from orders of that character, have been referred to and relied on in support of this position. The case of Wright vs. Hammer, 5 Md., 370 , is the only instance to be found in our reports of an appeal taken directly, before termination of the suit, from an order removing a cause for trial, and there, no question of the right of appeal was raised or passed upon by the Court. It may be doubtful, therefore, whether that case is to be accepted as conclusively establishing the right of immediate appeal from such orders; but this is not a point now to be determined.

Appeals have also, in some instances, been taken from orders remanding cases to .the Court from whence they were removed, but such cases may clearly fall within the general rule, for an order of that kind may operate to deny to a party the means of further prosecuting the suit. If the Court that ordered the removal in the first instance should adhere to its original order, and refuse to try it, on being remanded, the cause would terminate, and no trial could ever take place. It is easy to recognize the final nature of such an order, and' the necessity of allowing an appeal therefrom. Appeals have also been allowed from orders refusing a removal.

The ground upon which these are sustained is stated in Griffin vs. Leslie, 20 Md., 19, where it is said an order of that character unlike ordinary rulings on motions addressed to the discretion of the Court, or on demurrers and other interlocutory judgments, “does finally settle a constitutional right of the party, the exercise of which when demanded is essential to the impartial administration of justice, and should not be withheld or postponed.” Whether the statutory right or privilege of being sued only in the county of residence ought to be placed on the same footing, and its refusal made the subject of an immediate appeal, we need not now decide, because the present order, in our opinion, does not amount to a refusal of the defendant’s motion. It merely provides that the matters of fact alleged in the motion shall be tried by a jury. There is nothing final about it even in ⁴⁶³ respect to the motion itself, and much less is it so far final as to settle the rights of the defendant involved in the action or to deny to