Mears v. Remare

Alvey, J., delivered the opinion of the Court. The motion to rescind the order of this Court of the 14th of April, 1871, quashing the writ of restitution issued by the clerk, upon the application and direction of the attorney of the appellant, Mears, must be overruled. The writ of restitution was not only irregularly issued, but was simply void for want of a judgment in this Court upon which it could be founded. The case was originally brought here by an appeal from the judgment of the Baltimore City Court, rendered in the case of an appeal from the judgment of a justice of the peace to that Court; and the only question upon which the appeal could be maintained in this Court, was the one of jurisdiction of the City Court to hear and decide the case, without due and legal notice, such as the law prescribed to be given to the appellee in such cases.

That was the only question for review in this Court, and was the only one that was decided. The merits of the controversy between the parties were not before us, and could not, therefore, be passed upon. The reversal of the judgment appealed from was simply because it had been rendered without due notice; and upon such reversal the case was left standing in the City Court precisely as if ³³⁵ no trial had occurred in that Court, and it was competent to the appellant in that Court to proceed to give the legal notice to the adverse party, and thereupon proceed to trial