Mears v. Remare

Robinson, J., delivered the opinion of the Court. This is an appeal from a judgment of the Baltimore City Court, in a proceeding instituted by a landlord, in conformity with the provisions of the General and Local law, against a tenant for years, wrongfully holding over after the expiration of his term. 1 Code, Art. 53, and 2 Code, Art. 4. The case was originally tried before a justice of tlie peace, and the judgment being in favor of the tenant, an appeal -was taken by the landlord to the Baltimore City Court. The case was regularly docketed, and summons issued for the appellant, which, being returned non est, the appellee filed a petition alleging that, although the summons was returned non est, it was in fact served by being made known to the family of the appellant, and also by service upon his attorney ; that in a proceeding of this kind, a summons was unnecessary, and the petitioner prayed that the cause might be put in order for trial and final determination upon its merits, and if deemed necessary, that the sheriff be directed-to amend his return by stating the facts specially in regard to the service of the writ.

Without notice to the appellant, an order was passed by the Court directing the sheriff so to amend his return. It appears by the amended return, that the sheriff, having called several times at the residence and place of business of the appellant, without being able to make personal service of said writ upon him, made known to the son the nature of the writ, and also called upon the attorney of the appellant and requested him to admit service, which, however, he declined. Under the above facts, the sheriff returned the writ non est. ²⁵⁰ Upon this amended return being filed, the Court proceeded to try the case ex parte, and the appell'ee waiving a jury trial, it was heard before the Court, and a judgment rendered in favor of the landlord, the present appellee, for a restitution of the premises, and six hundred dollars damages, and twenty dollars and sixty-five cents costs. A motion is made by the appellee to dismiss this appeal upon the ground that the Baltimore City Court was in the exercise of an appellate jurisdiction, and from its judgment in the premises, in the absence of statutory enactment, no appeal would lie.

It has been repeatedly held, that in all cases of appeals from the decisions of justices of the peace, the judgment of the appellate tribunal is final and conclusive. But all of these decisions must be understood as referring to cases in which the Court had jurisdiction of the person or subject-matter. So early as Webster, et al. vs. Cockey, et al., 9 Gill, 92 , it was held, that if “the judgment was unwarrantably pronounced on the subject,” it might be reviewed and reversed on