Mears v. Remare

Robinson, J.,

delivered the opinion of the Court.

This is an appeal from a judgment of the Baltimore City Court, in a proceeding instituted by a landlord, in conformity with the provisions of the General and Local law, against a tenant for years, wrongfully holding over after the expiration of his term. 1 Code, Art. 53, and 2 Code, Art. 4. The case was originally tried before a justice of tlie peace, and the judgment being in favor of the tenant, an appeal -was taken by the landlord to the Baltimore City Court.

The case was regularly docketed, and summons issued for the appellant, which, being returned non est, the appellee filed a petition alleging that, although the summons was returned non est, it was in fact served by being made known to the family of the appellant, and also by service upon his attorney ; that in a proceeding of this kind, a summons was unnecessary, and the petitioner prayed that the cause might be put in order for trial and final determination upon its merits, and if deemed necessary, that the sheriff be directed-to amend his return by stating the facts specially in regard to the service of the writ. Without notice to the appellant, an order was passed by the Court directing the sheriff so to amend his return.

It appears by the amended return, that the sheriff, having called several times at the residence and place of business of the appellant, without being able to make personal service of said writ upon him, made known to the son the nature of the writ, and also called upon the attorney of the appellant and requested him to admit service, which, however, he declined. Under the above facts, the sheriff returned the writ non est.

*250 Upon this amended return being filed, the Court proceeded to try the case ex parte, and the appell'ee waiving a jury trial, it was heard before the Court, and a judgment rendered in favor of the landlord, the present appellee, for a restitution of the premises, and six hundred dollars damages, and twenty dollars and sixty-five cents costs.

A motion is made by the appellee to dismiss this appeal upon the ground that the Baltimore City Court was in the exercise of an appellate jurisdiction, and from its judgment in the premises, in the absence of statutory enactment, no appeal would lie. It has been repeatedly held, that in all cases of appeals from the decisions of justices of the peace, the judgment of the appellate tribunal is final and conclusive. But all of these decisions must be understood as referring to cases in which the Court had jurisdiction of the person or subject-matter. So early as Webster, et al. vs. Cockey, et al., 9 Gill, 92 , it was held, that if “the judgment was unwarrantably pronounced on the subject,” it might be reviewed and reversed on appeal to this Court, and in The State vs. Mace, 5 Md., 337 , it was decided that the judgment of the Court of Common Pleas, rendered in a case in which it had no jurisdiction, could be reviewed on appeal by this Court.

In Hough vs. Kelsey & Gray, 19 Md., 451 , and Rundle vs. Mayor and City Council of Baltimore, 28 Md., 361 , it was held that the decision of the Appellate Court, in regard to the regularity or propriety of the appeal, was final and conclusive, but in Kinnear & Willis vs. Lee & Reynolds, 28 Md., 488 , this Court' expressly say: “Where an inferior Court assumes jurisdiction, or where an order on its face appeal’s to be partly within and partly beyond the scope of the Court’s authority, an appeal lies, and the judgment thus unwarrantably pronounced, must be reversed.”

The only remaining question, then, is, whether the Court below had jurisdiction in this case at the time the judgment was rendered.

*251 (Decided 1st July, 1870.)

Now, the 900th section of Article 4, of the Code of Public Local Laws, provides, “that an appeal may be prosecuted from any judgment of a justice of the peace, rendered under the provisions of this law, to the Court of Common Pleas, in the manner and under the rules prescribed in cases within the ordinary jurisdiction of justices of the peace.” And the 53d section of Article 5, of the Code of Public General Laws, declares, that “ if two summonses be returned non est, or one summons be returned served, the Court may hear and determine the case ex parte. Jurisdiction, it is true, is conferred on the Circuit Courts in cases of appeal from the judgments of justices of the peace, but before they can exercise it, the party must either be returned summoned, or there must be two returns of non est; and there is nothing in the provisions of the local law under which this appeal was taken, or in the nature of the proceeding itself, to exempt this case from the express requirements of the law. The 903d section of Article 4, of the Code of Public Local Laws, which directs appeals to be tried at the first term, embraces cases only where the appellee has been summoned.

- Here the Court undertook to try this case ex parte, upon one return of non est. The appellant had neither legal nor constructive notice, and judgment rendered under such circumstances is, therefore, “ coram non judiee.”

Whatever may be the supposed hardships resulting to the appellee by the reversal of this judgment, they are not to be weighed against the greater evils which would inevitably flow from a disregard of that fundamental principle which declares “no person shall be deprived of his liberty or property without due process of law.”

For these reasons, the judgment below must be reversed.

Judgment reversed.