Baltimore County v. United Rys. Co. , 99 Md. 82 ( 1904 )

Charles T. Cockey, Jr., a resident of Baltimore County, brought a joint action in tort on the 9th day of September, 1903, against the County Commissioners of Baltimore County, the West Arlington Improvement Company of Baltimore City, the United Railways and Electric Company of Baltimore and the Western Maryland Railroad Company, corporations, to recover damages for injuries caused by the alleged negligent construction of certain drains and culverts by the defendants so as to divert the natural flow of the surface water and to cause it to overflow and be discharged upon the plaintiff's property.

The defendants appeared to the action and pleaded the usual plea of "did not commit the wrongs alleged."

The United Railways and Electric Company of Baltimore and the Western Maryland Railroad Company, two of the defendants, and the appellees in this case, filed separate suggestions and affidavits for the removal of the case, wherein it was alleged that "it cannot have a fair and impartial trial, and prays the Court to order and direct the removal of the record of proceedings to some other Court having jurisdiction in the case."

On the 21st of December, 1903, the appellants, the County Commissioners and West Arlington Improvement Company, filed objections to the removal of the case, stating that "the suggestion was not filed with their assent or on their behalf, and that they object to the removal of the case from the Court, on such suggestions."

Subsequently, on the 29th day of December, 1903, the Court below passed an order directing that the record of proceedings, in the case be transmitted to the Baltimore City Court for trial and from this order an appeal has been taken.

There is but one question raised on the record, and it is substantially this, whether one of several co-defendants, in an action at law, can have a case removed to another jurisdiction, when the suggestion is made on behalf of only one and the removal is resisted by the co-defendants.

The determination of the question rests upon the construction of sec. 8 of Art. 4 of the Constitution, and sec. 97 of Art. 75 of the Code of Public General Laws relating to the removal of cases.

By sec. 8 of Art. 4, of the Constitution it is provided, that in all suits or actions at law * * * upon suggestion in writing under oath of either of the parties to the proceedings, that such party cannot have a fair and impartial trial in the Court in which the same may be pending, the said Court shall order and direct the record of proceedings in such suit or action * * * to be transmitted to some other Court having jurisdiction in such case for trial.

It is urged upon the part of the appellants, that the construction of the words, "either of the parties" "or such party" as contained in the Constitution, means "both parties, where there are two, or all of the parties, where there are more than two co-parties and that the suggestion, must be made the joint act of all before it can be said that the party has filed the suggestion."

It is insisted, however, upon the part of the appellees that either party to the cause has the right of removal, and that "either of the parties" mean "any of the parties" and that where a suggestion for removal is made by one of several co-defendants, it must be taken as made on behalf of all the persons constituting the party, plaintiffs or defendants, as the case may be, and this contention was sustained by the Court below.

We cannot agree to the conclusion reached by the Court below or sanction its construction of the section of the Constitution here in controversy. The cases in this Court and in the Federal Courts, hold that the right of removal resides in the party plaintiff or defendant and not in each of several plaintiffs or defendants.

In the case of State, use of the County Commissioners ofCarroll County v. Gore, 32 Md. 498, it was held that either party to the cause has the right of removal, not to be exercised, however, more than once; but the term "party" as employed in the Constitution, Art. 4, § 8, and the Act of Assembly, to regulate and give force to the constitutional provision, when applied to civil causes, must be taken in a collective and representative sense, where there are more persons than one as plaintiffs or defendants, as there can be no severance, all applications to remove "in such cases must be taken as made on behalf of all the persons constituting the party-plaintiffs or defendants, as the case may be. "Any other construction would work the greatest inconvenience, if not, in many cases, a total defeat of all trial. For, if there should happen to be more individual defendants to a cause than there are judicial circuits in the State (a thing of not unfrequent occurrence), and each defendant had a separate and consecutive right of removal, as is claimed in the present instance, by electing to remove to a different circuit from that in which the cause might be at the time depending, as could be done, it is easily seen how justice could be defeated, and the whole judicial power of the State put at defiance, by such a device. Certainly, the framers of the Constitution never contemplated a construction of the clause in regard to removal of causes that could lead to such a result. If, in the cases before us, the individual defendant, whose application was gratified by the Circuit Court for Frederick County, has the right to remove, the right equally exists to the remaining defendants; and they may each exercise the right, and, before these cases can be brought to trial, they may find their way into nearly every judicial circuit of the State, as there are seven defendants in each cause. Seeing to what consequences the construction contended for leads, we cannot, for a moment, suppose it to be sound."

The same decision was made in the more recent case of Cooke v. Cooke, 41 Md. 366, and the ruling made in State v. Gore (supra), was there approved and affirmed by this Court.

The questions presented and passed upon in those cases are decisive of this, and we do not deem it necessary to extend this opinion by the citation of cases from Courts of other States where the words "the party" or "the parties" when used in statutes, regulating the removal of causes, have been given a similar construction.

In the case at bar, the application for removal was not made on behalf of the corporations constituting the party defendant, but was made by each of the appellees, on their own behalf. And this application was resisted, by two of the party defendants, the appellants in this case.

As the right of removal resides in the party plaintiff or defendant and not in each of several plaintiffs or defendants, the Court below committed an error in directing the record of proceedings to be transmitted to the Baltimore City Court, and its order of the 29th of December, 1903, must be reversed.State v. Gore, 32 Md. 498; Cooke v. Cooke, 41 Md. 366;Pirie v. Tredt, 115 U.S. 41; Sloane v. Anderson,117 U.S. 275; Hanrick v. Hanrick, 153 U.S. 195.

For the reasons given, the order of the Circuit Court for Baltimore County dated the 29th day of December, 1903, will be reversed and the cause remanded, with costs.

Reversed and cause remanded, with costs.

(Decided March 22d 1904.)