Tyler v. Murray

Irving, J., delivered the opinion of the Court. The appellee sued the appellant in the Court of Common Pleas, Baltimore City, for assault and battery; alleging, in a single count, in her narr. that “ the defendant on divers days and times assaulted and beat the plaintiff, whereby she was greatly damaged.” On the return of the writ the appellant in his proper person pleaded, “ that he inhabited, dwelt and resided in Baltimore County, and that there had been no non est returned on a summons ⁴³⁵ issued in said Baltimore County against him.” To this a replication was filed by the plaintiff, first, directly traversing the facts alleged in the plea, which she prayed might he enquired of by the country; and secondly, a special replication which, having been demurred to and the demurrer sustained, forms no part of this inquiry. The appellant joined issue on the appellee’s traverse which concluded to the country. Afterwards, appellant in person moved the Court to enter judgment of nonpros. against the plaintiff, for the same reasons stated in his plea.

To this objection was made by the plaintiff’s counsel, because the motion “ was not filed in time under Bule No. 8 of the Court.” The Court sustained the objection for the reason stated; and this action forms the point of the first exception. The Buie No. 8 not having been put in the record, we are bound to presume, that the Court acted rightly, and in accordance with its rules. Cherry vs. Baker, 17 Md., 75 ; Morrison vs. Welly, 18 Md., 169 . The second exception was to the overruling the defendant’s motion, that the issue joined upon the first replication to the defendant’s plea, should be submitted to.the Court without the aid of a jury.

In this ruling the Court of Common Pleas committed no error. The Code, Art. 75, sec. 87, provides, that “no person shall he sued out of the county in which he resides, until the sheriff,or coroner of the county in which he resides shall have returned a non est on a summons issued in such county.” By several decisions of this Court it has been settled, that the question of jurisdiction and privilege, arising in any case on this provision of the Code, may he raised either by motion for non joros, or by plea “ in the nature of a plea of abatement.” Hamilton vs. The State, use of Hardesty, 32 Md., 352 ; Gittings vs. State, use of Ockerme, 33 Md., 463 . By the case last cited it was determined, that when the question was presented by a motion for a non ⁴³⁶ pros, the enquiry was made before the Court, without the intervention of a jury, and that sucli practice was not obnoxious to any constitutional objection because of its infringing upon the right of trial by jury. Whether a jury trial may be had when the question is raised by plea, in the nature of a plea in abatement, does not seem to have been before raised in this State.

The Court in the case of Gittings vs. The State, use of Ockerme, 33 Md., expressly decline to say what ought to be allowed in such case, and cannot be taken, as the counsel for appellant insist, to have made an intimation adverse to the right of jury trial in such case, when craved. In Anderson vs. Garrett, 9 Gill, 120 , there was a plea interposed, and it was disposed of by the Court; but it must have been done by consent; for there appears to have been no traverse of the allegation of the plea by way of replication with conclusion to the country, and a joinder of issue ; and the case was submitted to the Court on the plea denying jurisdiction, upon proof taken before the Judge in an application for Habeas Corpus. This case, therefore, settles nothing, except that such plea may be decided by the Court without a jury, if the parties agree ; and does not certainly decide that the parties may not have a jury for the decision of the questions of fact on which the plea rests. In the case at bar, the appellee traversed the appellant’s plea, and prayed that the same might be inquired of by the country.

The appellant’ accepted the issue, so presented for trial by jury,'and joined in it¡’ Nothwithstanding the appellant might have avoided a trial by jury, on that question, by electing in proper time, a motion of non pros., it’ does not follow, that when he has elected to plead instead of moving for nonpros., and that plea has been replied to by a direct traverse concluding to the country, on which he joined issue, that then, as a matter of right, he may have that issue, made for a jury, tried before the Court, against the will of his adversary. We ⁴³⁷ think the Court of Common Pleas adjudged rightly. He had made his election and was hound by it; and the issue on his plea was properly allowed to go to a jury. In the first; volume of Oldtty on Pleading, page 445, it is distinctly stated that if the replication to the plea to the jurisdiction denies the facts alleged, the conclusion is to the country.

He recites numerous and valuable volumes of precedents to support his statement of the practice, in Harris’ Entries, 270, we find the precedents of our own State sustain the same practice. The conclusion thus universally adopted, unerringly indicates that the facts alleged in support of the plea, are triable by a jury ; and that the Court only pronounces judgment for the defendant, or of respondeat ouster, in favor of the plaintiff, as the finding of the jury requires. Mr. Poe in vol. 1 of Ms work on Pleading and Practice, p. 503, states this to he the practice in this State, unless the parties assent to the trial before the Court. We can find no authority for refusing a jury trial where the issue is made up for it; and we can see no good reason why the practice should not prevail of granting it.

The third bill of exceptions, and the eighth prayer of the defendant, which was rejected by the Court, and is set out in the seventh hill of exceptions, present substantially the same question, namely, whether the plaintiff was entitled to state her grievances to the jury, offer proof of them, and have an assessment of damages therefor, until the question of jurisdiction had been fully passed upon and determined. After careful consideration of this question, and examination of numerous authorities we are satisfied that the learned Court which decided the question below, has fallen into error. A plea to the jurisdiction, though denominated a plea in abatement, differs from it in some particulars. It partakes also sometimes, as in this case, of the character of a a plea of privilege.

Oldtty and Stephen, in their works ⁴³⁸ upon Pleading, treat of this plea under a special head, and' as differing from an ordinary plea in abatement. Ordinary pleas in abatements, are pleaded by an attorney after appearance. Pleas to the jurisdiction must be put in before imparlance ; and must be pleaded by the defendant in person. They cannot be pleaded by attorney, for that requires application to the Court for leave to imparl, and would submit to the jurisdiction.

Bacon’s Abridg ment;, title Abatement, 1 and 2 ; 5 Iiob. Pr., 7. Because it is a denial of jurisdiction ; it is not necessary to sa'y “ he defends force, injury, &c.” in the plea. 5 Rob. Pr., 7.

A plea to the merits and to the jurisdiction at one and the same time are so inconsistent, that k plea to the merits is waiver of the plea to the jurisdiction. In Supreme Court of the United States, in Sheppard vs. Graves, 14 Howard, 509 , it is so decided; and the Court says, “ it has ever- been received as a canon of pleading, that matters which appertain solely to the jurisdiction of a Court, or the disabilities of the suitor, should never be blended with questions which enter essentially into the • subject-matter of the controversy.” “All defences involving inquiries into that subject-matter imply, may admit the competency of the parties to institute such inquiries, and the authority of the Court to adjudicate upon them. Hence it is that pleas to the jurisdiction pr in abatement, are deemed inconsistent with those which appertain to the merits of the cause ; they are tried upon different views, and result in different conclusions.” The case of Sims vs. Hundley, 6 Howard, 1 , expressly affirms the common law principle of pleading, that the question of residence, or right of the parties to sue, cannot be inquired into under the general issue. If the party cannot be permitted to defend himself, and appear by attorney to do it, while he is denying the jurisdiction of the Court, and that is undetermined; it is most illogical and unjust for the Court, while inquiring into the question of jurisdic ⁴³⁹ fcion, to assume jurisdiction over the subject-matter, and to decide that by denying jurisdiction he liad confessed the charge in the narr., and to proceed to assess the damages at one and the same time, that the questions of fact on which jurisdiction depends, are being settled.

Judge Daniel, in Sheppard vs. Graves, most forcibly and convincingly says, that “ if it could be imagined that the plea to the jurisdiction and the plea to the merits could be regularly committed to the jury at one and the same time, the verdict might involve the following absurdities. Should the verdict he for the plaintiff, the judgment would be, as to the defendant, on one issue that he answer over; and as to the other, that he pay the debt, as to the justice of which he was to answer over.” The present case illustrates the necessity for á separate inquiry, even more strikingly; for in the case put by Judge Daniel, the party would he allowed to make his defence-on the merits, and the inconsistency would only he in the judgment entered. Here, there was no plea to the merits, and because he did not do that which he could not do without admitting jurisdiction, he was treated as if he confessed on the merits ; or as if', he was under judgment hy default, which the Court could not render ; and the question of jurisdiction and assessment of damages was settled hy one and the Eiame verdict. Practically, it was not only denying the defendant the benefit of his plea, to the jurisdiction; hut it was denying him regular trial on the merits.

Verdict was for the plaintiff, and judgment was entered, not of respondeat ouster, hut for damages assessed and the costs. All authorities agree that the judgment on the plea to jurisdiction, when against the defendant, is that he shall answer over. The necessary consequence of the Court’s ruling in this case, was the entry of judgment as made, and the defendant was denied his privilege of answering over. The application of the rule of pleading, that what is not denied is confessed ⁴⁴⁰ to a case like this, was erroneous.

The question presented was like that made hy demurrer, whether he was called on to plead at all. While that was pending he was under no rule to plead, and the Court's right to make him plead was the very question for trial. The appellant had the right to make that plea, and raise that point, and was as much entitled to have that settled before being required to plead, or go to trial on the merits;, as if he had demurred to the narr. In 1 Sumner, 578, Judge Stoby says, the question of jurisdiction is a preliminary one, and must be taken hy plea.

He further says, “ all pleas to the jurisdiction, are objections to entering into the litis contestado, and they must and ought to precede the litis contestado.” It would seem that this question was hardly open in this Court, after what was said in State, use of Ockerme vs. Gittings, 35 Md., 174 . In that case the Court below had refused a motion for judgment by default, pending the question whether the Court had jurisdiction by reason of alleged non-residence of the defendant; and this Court said “ the Court