Smith v. Fredericktown Bank & Trust Co.

Digges, J., delivered the opinion of the Court. We are here involved with the denial of the right to remove a civil case from the circuit court of its origin as provided by Article IV, Section 8 of the Maryland Constitution, Article 75, Section 44 of the Maryland Code (1957, 1969 Repl. Vol.), and Maryland Rule 542. Even though the order denying removal is seemingly interlocutory in nature we must entertain this appeal because it involves the alleged denial of an absolute constitutional right.

Elliott v. Larrimore, 203 Md. 526 , 101 A. 2d 817 (1954); Griffin v. Leslie, 20 Md. 15 (1863). Note the full discussion of this right of appeal from a removal decision in criminal cases in Pearlman v. State, 226 Md. 67 , 172 A. 2d 395 (1961). On June 10, 1969, the Circuit Court for Frederick County received issues from the Orphans’ Court of Frederick County, Maryland, as a result of a caveat to the will of Charles McElfresh Smith. The Frederiektown Savings and Trust Company (now The Frederiektown Bank and Trust Company) as executor under the will, was named as the caveatee and is the appellee in this appeal.

The case was ultimately set for trial on January 13 and 14, 1970, but on January 8 the caveators filed a suggestion of removal under Article IV, Section .8 of the Maryland Constitution, alleging merely that they could not have'“a fair and impartial trial” in Frederick County. The trial court (Clapp, J.) denied the motion on the ¹⁴³ ground that they had not complied with Sixth Circuit Rule 542. That rule provides: “RULE 542. REMOVAL OF CAUSES.

The right of removal of all actions at law, issues from the Orphans’ Court or from any court sitting in equity or appeals from the Workmen’s Compensation Commission shall be waived by a party unless a written suggestion is filed within 45 days after such cause is at issue or when any such issue or appeal is filed, or within 45 days of the docketing of any such cause being removed from a court outside the Sixth Judicial Circuit, unless a party making the suggestion can make it satisfactorily appear to the court that there is reasonable ground for the same.” Judge Clapp observed that they had neither filed the suggestion of removal forty-five days after the filing of issues nor made it appear that there were reasonable grounds for removal. In addition Judge Clapp pointed out that “this case had been at issue for more than 45 days after the first day of October, 1969, the date on which the above