Guerreni v. Sainsbury

²⁴⁷ Pattison, J., delivered the opinion of the Court. The appellant in this case was one of a number of defendants in what is. known as “'The Vincenti Conspiracy Case/’ which was tried in the United States District Court for the District of Maryland, in which he and others were indicted, tried and convicted of conspiring to violate some feature or features of the federal statute known as the Volstead Act. The appellee, a prohibition enforcement officer, was. also one of the defendants in that case, who, as he alleges, was arrested and indicted upon the false information of the: appellant, but upon trial thereafter was acquitted. The appellant pleaded guilty to the charge against him, but his sentence was deferred until after the appellee and other officers of the Government were first tried and acquitted.

The trial of the appellee and other1 Government officers upon said charge, including1 that of bribery, in which the appellant was a witness for the prosecution, was concluded on Friday, the 19th day of November. It was then arranged that the appellant should be sentenced on Monday following, November 22nd, and upon that date he came from Lancaster, Pennsylvania, to receive his sentence. On that day he was sentenced to pay a fine of $10,000, which he raised by the sale of certain liberty bonds, which were then deposited as bail for his appearance for trial. This, however, was not accomplished until some time in the afternoon of that day.

In the meantime, the appellee had instituted suit against him in the Superior Court of Baltimore City for “injury to his reputation and credit” caused by the alleged false information and testimony of the appellant, and the writ of summons issued thereon was served upon the appellant in the afternoon of that day in the City of Baltimore, and thereafter the sheriff made his return upon the writ. The defendant by his attorney appeared specially and moved the court to quash the sheriff’s return for the reason “that said defendant is a resident of Lancaster, Pennsylvania, and at the time ²⁴⁸ of the service of the writ upon him, he was a Government witness and also a party defendant in the United States District Oourt for the District of Maryland and was immune for service of process.” The court below heard evidence upon this motion and, at the conclusion of the defendant’s testimony, the motion to quash the writ was overruled. It is from the order so overruling the motion that this appeal is taken. Is this a final order from which an appeal can be taken?

In Bolgiano v. Gilbert Lock Co., 73 Md. 132 , the writ of summons was served upon the secretary of the defendant company, a resident of Mew Jersey, while he was in this State in attendance upon the court as witness. The petition was filed asking that the writ and return thereon be quashed, and a demurrer filed thereto was overruled. From the order overruling the demurrer, the appeal was taken. The action upon the demurrer was, it seéms, treated as equivalent to an order quashing the writ and return.

In Mullen v. Sanborn, 79 Md. 364 , motion to quash the writ and return was made upon the same grounds as those in Bolgiano v. Gilbert Lock Co., and, upon such motion, the writ and return was quashed, but, upon appeal to this Court, the order quashing the writ and return was reversed. In Long v. Hawken, 114 Md. 234 , a motion to quash the writ and return, based upon the reasons assigned in the two preceding cases, was granted, and an appeal was taken from that order quashing the return, which, too, was heard by this Oourt. In each of these cases, the result of the rulings of the lower court was to put the parties out of court. Sharpless Separator Company v. Brilhart, 129 Md. 88 .

But in Oland v. Agricultural Insurance Company, 69 Md. 248 , where the return of the sheriff was “served on Edgar B. Freeman, agent of the Agricultural Insurance Company of Watertown, Mew York,” and “a summons was also directed and sent by mail to the general agent or attorney of the com ²⁴⁹ pany, residing in the City of Baltimore, specially appointed to receive service of process against the company; hut whether such summons was ever received hy said agent or attorney was a controverted fact in the case. The appellee, hy its attorney, entered a special appearance in the case for the purpose of objecting to the sufficiency of the service of process; and it was upon the objection, made under such appearance, that the sheriffs return was quashed.” In that case the Oourt said. “The case against the appellee is still pending in the lower' court and the process may he renewed and properly waived in accordance with