Yoe v. Gelston

Bartol, C. J., delivered the opinion of the Court. This suit was instituted by the appellant in the Court of Common Pleas on the 6th day of March, 1871, the summons was returnable to the second Monday of that month, being one of the Return days fixed by the Local Code relating to the City of Baltimore, Art. 4, sec. 161, as amended by the Act of 1864, ch. 6, and was duly returned “summoned.” The record states that the defendant being called, appears by his attorney, Isaac D. Jones, Esquire. ²³⁵ Afterwards, on the 15th day of June in the same year, which was during the succeeding May Term, the declaration was filed, and a copy thereof was served on the appellee’s counsel the same day, with the notice, “ that on the day of the filing of the declaration, a rule would bo entered requiring him to plead to the declaration within fifteen days thereafter.” On the hack of the declaration was endorsed as follows: “ Service of copy admitted, June 15th, 1871. “Isaac D. Jones, ‘ ‘ Ally, for Defendant. ’ ’ Afterwards, on the 12th day of September, 1871, the defendant, by his attorney, filed a motion for a judgment oi non pros., on the ground of wow-residence of defendant; a demurrer was filed thereto, which was sustained by the Court. Whereupon the defendant, by his attorney, prayed leave of the Court to file an amended motion for judgment of non pros., which was granted, and, on the 14th day of October in the same year, the amended motion was filed, averring in proper form that the defendant was a resident of Baltimore County, and that no summons had been issued against him and returned in said county, before the issuing of the writ in this cause; this was verified by the affidavit of the defendant filed therewith. Whereupon the Court ordered a judgment of nonpros., and the plaintiff appealed.

The Code, Article 75, sec. 87, provides that “no person shall be 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 esV on a summons issued in such county.” The appellee was entitled to claim the benefit of this statutory exemption; and according to the practice in this State, he was at liberty to avail himself of his privi ²³⁶ lege, either by plea, or by a motion addressed to the Court. Hamilton vs. State, 32 Md., 348 ; Gittings vs. State, 33 Md., 458 ; Same vs. Same, 35 Md., 169 . It is also settled by those cases, that a party may make this defence either in person or by attorney, the appearance by attorney for. that purpose not being a waiver of