Tucker v. State ex rel. Kneighton

Tuck, J., delivered the opinion of this court. The appeal from the final judgment, authorises this court to review the rulings of the court below on the demurrers. Lawson vs. Snyder, 1 Md., Rep., 77, is a case directly in point. In deciding the issues of law, we are not confined to an examination of the rejoinders to which the plaintiff demurred, but must consider the previous pleadings.

By profert of the bond and the grant of oyer of the bond and condition, they are made parts of the declaration, (Birckhead vs. Saunders, 2 H. & G., 82,) looking to which, we see that the same question arises that is presented by the fourth rejoinder. This court must take judicial notice of the tribunals created by the constitution, and as there was no Anne Arundel county court, and as the parties are not responsible beyond the condition which they have undertaken to perform, it follows, that there was no court before which the appeal could have been prosecuted. If the State, instead of assigning the breach in the short form, as in Karthaus vs. Owings, 2 Gill & Johns., 430, had replied, that the judgment appealed from had been affirmed in the Circuit court for Anne Arundel county, the court must have held that such a breach was not within the contract declared on by the plaintiff. Morgan vs. Morgan, 4 G. & J., 395 .

And if the replication had shown the affirmance of a judgment of condemnation, under the act of 1836, ch. 150, even in Anne Arundel county court, it would have appeared to be a different judgment from the one recited in the appeal bond, which is a money judgment for two thousand dollars. In either aspect of the obligation, under that form of assigning the breaches, the action must have failed. 2 H. & G., 82 . Morgan vs. Blackiston, 5 H. & J., 61. If the ³³⁰ same objection appears on the record in another form of pleading, can the result be different?

Surely not. The principle which we think must govern this case, was established in the cases of State vs. Manly, 1 Md., 135 , and Coleman vs. State, 10 Md., 168 . In the first of these, an order was passed removing a prosecution from Baltimore city court to Howard county court, and the traverser was recognised to appear before that court. The record was transmitted to the court of Howard district of Anne Arundel county, to which, doubtless, Baltimore city court designed to have removed the prosecution, but the judge of that court, denying its jurisdiction, refused to forfeit the recognizance, and remitted the record and prisoner to Baltimore city court, which ruling was affirmed; on the ground that, “there being no such court in existence, the order of remoyal and the recognizance were null and void.

And consequently the case was not removed from Baltimore city court, but remained in that court as if there had been no order of removal.” In the other case, Coleman recognized before a justice of the peace, to appear at Allegany county court, since the adoption