Kimball v. Harman

Alvey, J., delivered the opinion of the Court. The appeal in this case is taken from an order of the Circuit Court for'Howard county, striking out a judgment in favor of the appellant recovered against the appellees, and remanding the record to the Court of Common Pleas of Baltimore city from which it had be'en removed, on the suggestion of the appellees. It appears that the action was instituted in the Court of Common Pleas to the January Term thereof, 1869, and in June, 1870, the defendants, the present appellees, made suggestion to the Court, supported by affidavit, that they could not have a fair and impartial trial in that Court, and prayed that the record of proceedings might be ordered to be transmitted to some other Court for trial; but in the suggestion they stated that they did not elect a Court of a different circuit. Upon this suggestion the Court ordered the record to be transmitted to the Circuit Court for Howard county, v'here ⁴⁰³ it was in fact sent, and in which latter Court, on the 8th of September, 1870, the case was tried, and a verdict and judgment thereon rendered in favor of the appellant for $495.12.

And on the 16th of September, 1870, the appellees filed a motion to strike out the judgment, assigning several reasons in support of such motion, the second of which was the want of jurisdiction in the Court to take cognizance of the cause. This motion was heard, and on the 30th of December, 1870, the Court ordered that the second reason assigned by the appellees for striking out the judgment be sustained, and that the judgment be accordingly stricken out, and that the record be remanded to the Court of Common Pleas from whence it was removed. It is from this order that the appeal is taken, and the only question presented by it is the one of jurisdiction, whether the cause was properly removed from the Court of Common Pleas to the Circuit Court for Howard couuty. It is contended on the part of the appellees, that inasmuch as they did not elect to have the cause removed to some Court of a different circuit from that to which the Common Pleas belongs, but having elected to remain in that particular circuit, it was error in that Court to order the record to be transmitted to the Circuit Court for Howard county, being a Court of a different- circuit, and that the latter Court was wholly without jurisdiction over the cause, and consequently there was no error committed by it in striking out the judgment and remanding the record.

But from this proposition we entirely dissent. The Constitution of 1867 would seem to be plain, and to afford no ground whatever for the position of the appellees. By the 8th section of the 4th Article, it is made the duty of the Judges, upon suggestion in writing, supported by affidavit, to order the record of proceedings “ to be transmitted to some other Court, (and of a different circuit, if the party applying shall so elect,) having jurisdiction in such cases.” But not necessarily to some other Court of the same circuit, even although the party should elect not to go out of it. The Judges may, in their discretion, order the ⁴⁰⁴ record to be transmitted to any other Court having jurisdiction in such cases, except in those instances where the party applying elects to go out of the circuit, and then the discretion is so far restricted that the record must be transmitted to some other Court of a different circuit.

We must suppose, if it had been intended by the authors of the Constitution to confine the discretion of the Judges to the Courts of the particular circuit, except where the party should elect to go out of it, that apt and appropriate terms would have been employed to express their purpose. The provision in the previous Constitutions of 1851 and 1864, in reference, to the power of removal, has been materially changed by that in the present Constitution. By the 28th section of the 4th Article of the Constitution of 1851, it was made the duty of the Judges, upon suggestion, to order the transmission of the record to the Court of any adjoining county ; “ provided, that the removal in all civil causes be confined to an adjoining county within the judicial circuit, except as to the city of Baltimore, where the removal may be to any adjoining county." And by the 9th section of the 4th Article of the Constitution of 1864, the record was required “to be transmitted to some other Court in the same or any adjoining circuit having jurisdiction in such cases.” It is thus plain to be perceived that the provision in the present Constitution differs from that in both the preceding ones in reference to this subject. Why this change in terms, if it was not intended to express a different rule? and as a different rule was intended, it is clear from the terms employed, that it is less restrictive than that prescribed by the former Constitutions.

For without the words i>n parenthesis, the discretionary power of selection conferred on the Judges by the terms, “some other Court having jurisdiction,” must be conceded to be general and unlimited; and the office of the terms in parenthesis is simply to restrict this general