Holt v. Tennallytown & Rockville Railroad

Fowler, J., delivered the opinion of the Court. The motion to dismiss the appeal in this case must be overruled, for it appears from the affidavits filed that the delay in transmitting the transcript of record to this Court was the fault of the Clerk of the Court below. The plaintiff, having been injured as he alleges, by the ²²⁰ negligence of the defendant, a railroad corporation, he instituted an action in the Circuit Court for Montgomery County to recover damages. Issue having been joined, the defendant suggested that the plaintiff was a non-resident, and asked the Court to place him under a rule security for costs, which .was accordingly done, and on the same day the defendant also filed a suggestion for removal, and an order was thereupon passed to remove the. cause to the Circuit Court for Anne Arundel County, in which Court the record was filed on the 19th of April, 1893.

On the 16th of October following, the defendant moved to enforce the rule security which had been laid in Montgomery County. This motion, at the instance of the plaintiff’s attorney, was not pressed. At any rate no action was taken, and the case was continued. On the first day of January term, 1894, the defendant again moved the Court to enforce the rule security of the Circuit Court for Montgomery County, which was accordingly done.

The plaintiff being in default a judgment of nonpros, was therefore entered against him. 1. The question of the constitutionality of the provision of our Code, Art. 24, sec. 9, requiring non-resident plaintiffs to give security for costs as therein provided, was fully argued by plaintiffs counsel, but it was said forty years ago by our predecessors that this law, having then been in operation for more than half a century, and having always been recognized by the profession, both on the bench and at the bar, as a valid law, they were not disposed to declare it a nullity. Haney v. Marshall, 9 Md. 194 . And at this late day we are equally unwilling to interfere with its opera-' tion by declaring it unconstitutional and void, because in violation of section 2, Article 4, of the Constitution of the United States, this being the same ground of objection which was urged in 9th Md. 2.

Is the rule security of the Montgomery County Court enforceable in the Circuit Court for Anne Arundel County? We think it is. This view is in conformity with the general practice, and will enlarge the operation of the law in ques ²²¹ tion, which was