Merrick v. Baltimore & Ohio Railroad

Alvey, J., delivered the opinion of the Court. This is an appeal from the Supreme Bench of Baltimore City, and the question preliminary to all others is one of jurisdiction of that Court to review on appeal an order of the Baltimore City Court, refusing to strike out a judgment rendered therein by default. It appears that the judgment by default, in favor of the present appellant against the appellee, was entered, on motion, on the 15th of September, 1868, and on the 13th of October following, it being after the first return day succeeding the return of the writ, on motion of the appellant, the judgment ■was extended under the Act of 1864, ch. 6. During the term at which this judgment was entered and extended, and only two days after the latter act, the appellee appeared by its attorney and moved the Court to strike out the judgment by default previously entered, and also the extension thereof; and assigned as reasons therefor, among others, that there had been irregularties in obtaining the judgment, and also surprise of the appellee.

This motion was supported by affidavits, and counter affidavits were filed on the part of the appellant. The Judge in the City Court supposing that the application to strike out involved some question of law that had been' determined by him on the motion to extend the judgment, and that his jurisdiction in the premises had been exhausted, refused the motion to strike out upon the ground of want of jurisdiction, and left the present appellee to its remedy by an appeal to the Supreme Bench. In the conclusion of his opinion filed, on disposing of the motion to strike out, he said that he should dismiss such motion for want of jurisdiction, and, in the docket entries of the cause the motion is entered as overruled generally. So that it clearly appears that the motion was definitively determined and disposed of in the City Court.

An appeal was taken to the Supreme Bench, and after full hearing there, it was ordered that the judgment entered by ⁴⁸⁵ tlie City Court should be stricken out, and a new trial had therein, on condition however, that the defendant should not plead the Statute of Limitations. It is from that order of the Supreme Bench that the present appeal is taken. And as ground for reversal of this order, it is contended that the Supreme Bench acted without warrant or sanction of law, and, consequently, without jurisdiction, in opening the judgment entered in the City Court; first, because the motion was addressed to- the sound discretion of the Judge of the latter Court, and as he refused to gratify the motion, no matter upon what ground, no appeal would lie; and secondly, because in disposing of the motion to strike out no such matter or question of law was determined as to entitle the present appellee to appeal to the Supreme Bench for review. To determine this question of jurisdiction of the Supremo Bench it is only necessary to refer briefly to the 33d section of the 4th Article of the Constitution, which limits and defines the powers and jurisdiction of that tribunal.

Over all motions for new trials, and motions in arrest of judgments, made in the several common law Courts of the city, before the recent Act of the Legislature, its jurisdiction was original, being required to hoar such motions in the first instance, as a Court in bane. But upon any other “ matters of law determined by the said Judge or Judges, while holding said several Courts,” its jurisdiction was appellate merely, and not original ; having no