Seth v. Chamberlaine

Alvet, J., delivered the opinion of the Court. The principal question on this appeal is, whether the Circuit Court for Talbot county, by the first suggestion made for removal by the defendant, and the order thereon directing the record to be transmitted to the Circuit Court for Caroline county, so far ceased to have jurisdiction over the cause as to preclude it from exercising the power of rescinding its order and allowing the suggestion for removal to be withdrawn, and the cause reinstated for trial; for if that order for removal was rightfully rescinded, there is no question as to the legality of the subsequent removal to the Circuit Court for Anne Arundel county, and from thence to the Circuit Court for Dorchester county, from whose action in regard to its jurisdiction over the cause this appeal is taken. It has been suggested in argument, that the order directing the transmission of the record to the Circuit Court for Caroline county, was not effective, because not signed by the Judges of the Circuit Court for Talbot county. But this suggestion is not well founded.

There is nothing in the Constitution or the law to require such order to be signed by the Judges. It is, like all other orders or rules in common law proceedings, evidenced as a regular entry in the cause made under the authority of the Court, by the attestation or certificate of the Clerk. The order may be ¹⁹⁴ signed by the Judges, as is sometimes done, but this is not an essential to its validity. But notwithstanding the order was in all respects formal and valid, we think there should be no question of the right and power of the Court to rescind that order at the instance of the party upon whose application it was made, under the circumstances disclosed in the record.

The power of removal is intended as a privilege of the party making the suggestion for the order, and, like any other privilege, it can be waived, if the right of waiver be exercised under proper circumstances. Here, the motion for a rescission of the order and for leave to withdraw the suggestion for removal was made at the same term at which the order was passed, and while the record still remained in the Court passing the order; and this being the case, the principle is too well established to require the citation of authorities to support it, and is of every day’s application in the practice of the Courts of this State, and elsewhere, that the Court retains power over its own judgments and orders, in both civil and criminal cases, during the term at which they are entered or made, and will, during that time, set them aside, or change or modify them, as circumstances may require. This being an undeniable proposition, we are unable to perceive any good reason why it should not apply to orders like that in question in this case, as well as to any other orders or judgments that may be entered by the Court. The only reason suggested