State ex rel. Ockerme v. Gittings

Alvey, J., delivered the opinion of the Court. The order from which the present appeal was taken, non prossing the plaintiff’s case, presents no question to this Court for review. It was passed upon oral evidence taken in Court, and there was no exception taken to present to this Court the evidence upon which the Court below acted. It is impossible, therefore, for this Court to determine whether the judgment complained of was warranted by the facts of the case or not.

If an exception had been taken, as might well have been done, it would have been the right of the plaintiff to have her case reviewed by this Court. But as the facts are not before us, of course we can have no judgment in regard to them. There is one question, and one only, that would seem to be properly presented here by this appeal, and that is, whether the motion for the nonpros, was made in time. That motion was made on the first day of the term next succeeding the return day of the writ, (as prescribed by the Act of 1864, ■ch. 6,) and before any defence was made to the action by way of plea.

The motion was overruled on the 21st of May, 1870, but again re-instated by the Court seven days thereafter. The plaintiff replied to the motion, and afterwards moved to strike it out, because it was not filed upon the ¹⁷² return of the writ; that is, as we take it, on the return day of the writ. . This motion by the plaintiff to strike out the motion to non pros, was overruled by the Court, and we think properly. Before this motion to strike out was made, the case had been in this Court on the appeal of the defendant, and although the appeal was dismissed as prematurely taken, we said that it was the duty of the Court below to hear and decide the motion to non pros, in a summary way, instead of submitting the matter to a jury, as that Court had decided to do upon the motion of the plaintiff.

It was not until after that appeal had been acted upon by this Court that the motion to strike out the defendant’s motion to nonpros, was made in the Court below. Up to that time the question had been as to the manner of presenting the question of non-residence, and the mode of trying it.' 33 Md., 458. Looking to the object contemplated by the 87th section of Article 75 of the Code, that of preventing a party from being liable to suit away from his home, and, as it might be, in a county remote from that of his residence, the provision should be applied in such a reasonable manner as not practically to render it useless. The rule to be adopted must apply to all cases alike, and cannot, of course, be made to have any special reference to the peculiar circumstances of this case.

And so applying the section of the Code, we can perceive no good reason for saying that the defendant was bound to appear and move for non pros, of the plaintiff’s action on the very day of the return of the writ, or otherwise forego the protection intended to be afforded him by the law.