Northern Central Railway Co. v. Canton Co. ( 1866 )

Goldsborough, J.,

delivered the opinion of this Court.

The action of ejectment in this case was instituted hy the appellee against the appellant, in the Superior Court of Baltimore City, to recover a parcel of land lying partly in Baltimore city and partly in Baltimore county, hut alleged in the nar to lie in Baltimore city. This suit was pending at the same time, in the same Court, with an action of trespass q c. /., between the same parties. Both suits were referred, under the provisions of the 7th Article of the Code, to I. N. Steele, Esq., as referee.

While the subject of this and the other suit was under the consideration of the referee, and before any award was made, the appellant obtained an injunction out of the Circuit Court for Baltimore City to restrain his proceedings. He, however, proceeded to make and return his award, and judgment being rendered thereon, this appeal was taken. The Canton Company appealed from the order of the Circuit Court granting the injunction, and entered into an appeal bond to prosecute the appeal. This appeal was pending in the Court of Appeals when the referee returned his award and when judgment was rendered thereon.

We have considered the effect of the appeal and the appeal bond in the action of trespass between the same parties, post, 500. The conclusion we arrived at in that case is equally applicable to this. Besides the exceptions in the record, the appellant contends that there is a want of identity between the land claimed in the nar, and the land in the award, and also the want of certainty in the award; and that the declaration is defective in not sufficiently defining the land, to show affirmatively that the greater part of it was within the city of Baltimore, thus securing to the Superior Court jurisdiction under the provisions of the 46th section of the 75th Article of the Code.

The jurisdiction conferred by the above article and section is general, extending to all the Common Law Courts of the State, and has for its object the prevention of a multiplicity of suits. If in the prosecution of this case in Court the defendant had objected to its jurisdiction, because it did not affirmatively appear in the plaintiffs’ nar, that the greater part of the land was within the city of Baltimore, the Court could have allowed an amendment of the pleading. Failing to avail itself of this defect, it would have been too late after verdict, as every reasonable intendment would be made to support it, and such an intendment will apply with equal or greater force to support an award. See 2 G. & J., 68. 10 G. & J., 193.

We cannot sustain the objection made by the appellant that there is a want of identity between the land claimed in the nar and that set out in the award, and that the award does not sufficiently describe the land.

Comparing the description in the nar with that in the award, we find them identical except the statement of the referee that the land lies partly in the city and partly in the county. In both the nar and award the description embraces ‘‘calls ’’ so notorious, that no difficulty could possibly arise in locating the claim and pretensions of the plaintiffs.

(Decided April 25th, 1866.)

For these reasons and those assigned in the trespass case we shall affirm the judgment.

Judgment affirmed.