Mottu v. Primrose

Bartol, J., delivered the opinion of this Court: In this case, the judgment below was rendered against six defendants, and the appeal has been taken by five of them only; and the appellee has moved to dismiss the appeal, on account of the non-joinder of the other defendant. Since the decision of the case of Lovejoy vs. Irelan, 17 Md. Rep., 525 , the law must be considered as settled, that where a judgment is rendered jointly against several persons, an appeal cannot be prosecuted by some of them, without the others, unless there be summons and severance. This rule rests not only upon authority, but is founded in reason and justice; otherwise the consequence might be, that in a judgment against six persons, there might be six distinct and separate appeals, and, in the language of Tidd, (Practice, 2 vol., 1189, when speaking of writs of error,) “Wo- that means the plaintiff would be delayed from his ex- ⁴⁹³ eeution for a long time, and from having any benefit of his judgment, though it might be affirmed once or oftener.” Tho effect of the application of this rule to the present case, would be, under the authority of Lovejoy vs. Irelan, to compel us to gratify the motion, and dismiss tho appeal. But the counsel for the appellants, to obviate the difficulty, have moved this Court to direct a summons now to be issued against the party who has not joined, requiring him to come into this Court and unite in the appeal; and, on his failure to do so, that his co-defendants may be severed, and allowed to prosecute the appeal alone.

This presents the question, from what Court the writ of summons and severance properly issues ? Neither the case of Lovejoy vs. Irelan, nor the case of Price vs. Thomas, 4 Md. Rep., 515, settles this question. In Price vs. Thomas, the objection was obviated by a correction of the record, and in Lovejoy vs. Irelan, no motion for the writ appears to have been made in the Appellate Court. The inference drawn by the appellee’s counsel from the language of the Court in those cases, “that the writ must be issued from tho Court where the judgment has been rendered, and that a severance is a necessary preliminary to the taking of the appeal,” we think is not warranted either by those decisions, or by the established practice in such cases.

After a careful examination of our books of Maryland practice, we have been unable to find any evidence of the practice in this State on this subject. Neither in Harris’ Entries, our old and justly respected book of forms, nor in the modern compilation of the same book, by Mr. Evans, or in his work on Practice, do wo find any reference to the writ of summons and severance. In the English practice, the writ is well known, and will be found treated of as well in standard elementary works as in the reported cases cited by the authors of books of practice. See 1 Archbold Pr., 233, 2 Tidd, 1189, 1225. 2 Sannd.

Rep., 101, sec. 101 g, notes. It appears, from these authorities, that the practice in ⁴⁹⁴ writs of error required that “they should he brought in the name of all the parties against whom the judgment is given, that it may agree with the record,” * * * * “and if any one or more of them refuse to appear and assign errors, they must he summoned and severed, and then the writ of error may he proceeded in hy the rest only.” 2 Saund. Hep., 101 g, note. See, also, authorities there cited.

(Decided October 6th, 1865.) Thos. S. Alexander and Win. A. Fisher, for the appellants, contended: 1st. That the Company’s real and personal estate being situate in Baltimore county, the Superior Court of Baltimore city had no jurisdiction to grant the writ. 8 Bland, 656 , Gape Sable Company’s case. 2nd.

That no demand having been made upon the respondents to appoint a judge and tellers, and there having been no refusal by tbom, tbe application should have failed. Tapping on Mand., 76 Law Lib., 282, 52 n. 84 n. (i.) 285. Lt. vs. Breakneck Ganal, 4 N. & M., 871.

B. vs. W. Love, 3 Barn. & Grass., 677. B. vs. Bristol & Essex B. B., 4 Adol. & Ell., N. B., 162. B. vs. Nottingham, 3 Adol. & Ell., 503. B. vs. Frost, 8 Adol. & Ell.fim.

B. vs. Wilts. Ganal, 8 D., 623 . B. vs. Montacute, 1 W. Blade’s Go. Bacon’s Abr., Mandamus, (L>.) ⁴⁹⁴ Prom an examination of the authorities, it is plain that, according to the practice at the common law in writs of error, the writ of summons and severance was issued out of the Appellate Court.

In our system, where appeals have been allowed by statute, and have been adopted almost entirely in place of writs of error, they are to he proceeded in according to the same rules as governed writs of error; and in the absence of any established practice in our State to the contrary, or any adjudication by the Court of Appeals on the subject, we feel ourselves warranted in deciding the present motions in conformity with the English practice and authorities, and therefore overrule the motion to dismiss, .and will order a writ of summons and severance, in the usual form, to be issued against J ames Carey Cole, the non-joining defendant. Motion to dismiss overruled, and writ of summons and severance ordered. The appeal in this case was argued before Bowies C. J., and Bartol, Gtoldsborough, Oochrait and Weisel, J. 3rd. The application should have been to compel the repeal of the present, and the re-enactment of the former bylaws, and then to appoint the judge and tellers under the latter.

Tapping on Mand., 282. 4th. The 8th by-law requires that ten days’ public notice shall precede an election; and as such notice could not have been given between the date of the filing of the petition and the third Tuesday of May, the petition should have been dismissed. Ellicott vs. Levy Gourt, 1 H. & J., 359 . Tapping on Mand., 15.

Bex vs. Wills. Ganal, 3 Adol. ds Ell., 477. Smith vs. Erb, 4 Gill, 459 . Bex vs. May, 5 Burr., 2681.

Ln mailer of Long Island B. B., 19 Wend., 38 . Wilcox on Gorp., 14 Law Lib., 42. 5th. That the alteration of the by-laws was made in the exercise of the legitimate authority of the Board of Managers. Act of 1852, ch. 221, sec. 2.

Angelí & Ames on Gorp., 357. Paxson vs. Sweet, 1 Green (N. J.) Bep., 196. Neiding vs. Francis, 3 Term Bep., 198. Foot vs. Mayor of Truro, 1 Strange Bep., 625. 2 Kent’s Gom., 295.

Hughes vs. Parker, 20 N. Hi. Bep., 58. 6th. That the discretion of the Board over the subject was properly exercised in the passage of the amendment to the by-laws, inasmuch as it was done for the purpose of preventing the consummation of frauds contrived by former Boards, in privity with the petitioner. In support of this point, the respondents will rely upon the various facts detailed in the answer, the truth of all which is admitted by the demurrer.

Gorporation cases, 4 Golee’s Bep., 78. Gom. vs. Gain, 5 S. &B., 510. Hoffman, dec., vs. Cumberland, Ganal (& Lron Go., 16 Md. Bep., 507. 7tli. The Court possesses a legal discretion to grant or refuse the writ, and such discretion is never exercised to assist fraud.

Evans’ Prac., 408. 4 Bac. Abr., 496. Tapping on Mand., 16, 28. 8th. The Court erred in refusing to fix the penalty of an appeal bond.

Code, Art. 5, secs. 3, 10, &c. J. Mason Campbell and Bernard Carter, for the appellee: 1st. The Loudon Parle Cemetery Company was incorporated on the 22nd of February 1853, under the general incorporating law of 1852, ch. 221. The charter is filed as an exhibit with the petition; and by the first article of that charter, it is declared that the corporation shall he located, and its principal business transacted, in the city of Baltimore.

The charter is acknowledged before the Judge of the Superior Court of Baltimore city, and recorded in the office of the Clerk of that Court. This is sufficient to show that this Court has jurisdiction of this case. The objection taken in the answer of the defendants, that the Cemetery itself is situated in the county, will not affect the question. The first section of the Act of 1852, ch. 221, forbids the holding of any ground in the city for burial, while it allows the incorporation to be made and located in the city. •The second section of the Act of 1852, ch. 221, declares that the Company may annually elect its Managers from its members, by a majority of the votes of the proprietors, at such time and place as its by-laws may specify.

The charter of the Loudon Park Cemetery Company fixes the number of Managers at six; and it was under a by-law in existence on the third Tuesday of May 1864, fixing the time of election, that the present Board were elected on that day, to hold their office for one year from that date, and until their successors should be elected. The enabling Act of 1852, ch. 221, only gives power to the corporations coming into existence under it, to make annual elections; but it is immaterial to consider this question. This Company undoubtedly had power to hold an annual election under its by-laws, and by its by-laws in existence on the third Tuesday of May 1864, it held an election, by which it invested the Managers then elected with capacity to exercise their functions for a period of twelve months. The present Board took office accordingly; and the inquiry resolves itself into this: whether officers elected for a special and limited term, have the power to extend their term at pleasure ?

If the present Board, by its own act, can hold office until November 1865, having been elected to hold till May 1865, there is nothing to prevent their extending their term to May 1866, and so on, ad infinitum. The power is to be found, if anywhere, in the authority given to the Managers to specify in a by-law the time of the annual election. Nothing can be plainer than that the object of such a provision is to facilitate the holding of an annual election, and not thereby to enable the Managers to prevent such annual elections. In this instance, an election had been held, and the stockholders had declared the term for which the Board was to serve.

No exercise of power on the part of the Board could be meant to have a retrospective effect. Of what avail was it to elect a Board for a definite period, one year, if as soon as they came into office, their authority was to