Hoshall v. Hoffacker , 11 Md. 362 ( 1857 )

Eccleston, J.,

delivered the opinion of this court.

The 28th section of the 4th article of the constitution provides for removals “in all suits or actions at law, issues from the orphans court, or from any court sitting in equity, in petitions for freedom, and in all presentments and indictments” then pending, or which might be pending at the time of the adoption of the constitution by the people, or which might be thereafter instituted in any of the courts of this State, having jurisdiction thereof. And the classes of cases thus enumerated, are the same as those mentioned in the 1st section of the act of 1854, ch. 325.

When the application for a removal was made in this case, it was pending in the circuit court for Baltimore county, by virtue of an appeal from a decision of the county commissioners, taken under the 13th section of the act of 1853, ch. 220, upon an application for a public road.

Neither the constitution nor the act of 1854, in express terms, confers the right of removing any case from one county to another, when the game is pending upon an appeal. Nor have we met with any decision, or even heard of any practice, in any part of the State, in affirmance of such a right, either $.s having existed under our former constitution and laws, or as now existing under our present system. But 'the absence of a sanction for the right by any decision or practice, although entitled to some consideration, is by no means the only ground on .which the decision below should be sustained. For, in our opinion, according to the proper construction of the constitution and of the law, they are designed to provide for removing cases from tribunals exercising original and not appellate jurisdiction.

In reference to suph an appeal as the present, the act of 1853 provides, that it shall be determined by the judge of the circuit court, or by a jury, at the option of either party.

The 2nd section of the act pf 1854, which authorizes a second removal, has po reference to appeals, as it relates only to cases which may be removed under the provisions of the first section.

We think the judge below decided correctly, and therefore his order wfill be affirmed.

Order affirmed, and procedendo ordered.

Le Grand, G. J.

Although I have considerable doubt as to the correctness of the decision as pronounced by my brothers,, I assent to the filing °f the opinion, believing that where my convictions are not decided, it is better I should unite with the rest of the court, §p. that the law may bp settled.