Tucker v. State ex rel. Kneighton

Tuck, J., delivered the opinion of this court. The appeal from the final judgment, authorises this court to review the rulings of the court below on the demurrers. Lawson vs. Snyder, 1 Md., Rep., 77, is a case directly in point. In deciding the issues of law, we are not confined to an examination of the rejoinders to which the plaintiff demurred, but must consider the previous pleadings. By profert of the bond and the grant of oyer of the bond and condition, they are made parts of the declaration, (Birckhead vs. Saunders, 2 H. & G., 82,) looking to which, we see that the same question arises that is presented by the fourth rejoinder. This court must take judicial notice of the tribunals created by the constitution, and as there was no Anne Arundel county court, and as the parties are not responsible beyond the condition which they have undertaken to perform, it follows, that there was no court before which the appeal could have been prosecuted. If the State, instead of assigning the breach in the short form, as in Karthaus vs. Owings, 2 Gill & Johns., 430, had replied, that the judgment appealed from had been affirmed in the Circuit court for Anne Arundel county, the court must have held that such a breach was not within the contract declared on by the plaintiff. Morgan vs. Morgan, 4 G. & J., 395. And if the replication had shown the affirmance of a judgment of condemnation, under the act of 1836, ch. 150, even in Anne Arundel county court, it would have appeared to be a different judgment from the one recited in the appeal bond, which is a money judgment for two thousand dollars. In either aspect of the obligation, under that form of assigning the breaches, the action must have failed. 2 H. & G., 82. Morgan vs. Blackiston, 5 H. & J., 61. If the [330] same objection appears on the record in another form of pleading, can the result be different? Surely not. The principle which we think must govern this case, was established in the cases of State vs. Manly, 1 Md., 135, and Coleman vs. State, 10 Md., 168. In the first of these, an order was passed removing a prosecution from Baltimore city court to Howard county court, and the traverser was recognised to appear before that court. The record was transmitted to the court of Howard district of Anne Arundel county, to which, doubtless, Baltimore city court designed to have removed the prosecution, but the judge of that court, denying its jurisdiction, refused to forfeit the recognizance, and remitted the record and prisoner to Baltimore city court, which ruling was affirmed; on the ground that, “there being no such court in existence, the order of remoyal and the recognizance were null and void. And consequently the case was not removed from Baltimore city court, but remained in that court as if there had been no order of removal.” In the other case, Coleman recognized before a justice of the peace, to appear at Allegany county court, since the adoption of the present constitution, by which circuit courts were substituted for the county courts. It was held, on appeal, that the recognizance to appear before a court not in existence, was void by reason of the impossibility of complying with its condition. The same doctrine must apply to cases of this kind, the principal obligor having undertaken to perform a condition, which, under the law, he could not perform. It was said in argument, that the defendants are estopped, by the recital in the bond, from denying that there was an Anne Arundel county court. This point might, if tenable, have availed the State in the cases last referred to, but it was not relied upon; nor do we perceive how the doctrine of estoppels can apply. Whether a court exists or not, is something more than a mere question of fact, as to which parties may agree or be concluded by admissions. It must depend on the constitution or laws, and when the court can see that the supposed tribunal is not known to these, it must so decide, no matter what the parties may have admitted by estoppel or [331] agreement. Besides, the bond does not recite that the party had appealed, but that he was about to appeal to Anne Arundel county court. Now, if he did not enter the appeal, and the declaration, with which alone we are now dealing, discloses nothing on that point, there was no obstacle to have hindered the State from prosecuting the judgment, to execution; and, if he did enter the appeal, the right of the State was equally unaffected, because an appeal bond, on which no recovery can be had by the obligee, cannot operate to stay execution. The State might have demanded execution of the judgment, non obstante this bond. Johnson vs. Goldsborough, 1 H. & J., 499. The case was provided for by the constitution, but the justice, it seems, made a mistake. The 8th section of article 4, gives to the circuit courts the power, authority and jurisdiction, formerly held and exercised by the county courts. The justice should have taken bond to prosecute the appeal to the circuit court. It may be a hardship on the State or the in•former, that such a mistake occurred, but we cannot supply a remedy. As we have said, the State was not bound by the appeal bond as a stay of execution, but might have proceeded on the judgment. These appellants were differently situated, being sureties in an appeal bond, under which their principal was entitled to no benefit whatever, and from which it was impossible to have discharged them by compliance with its condition. The State was not concluded by the bond, and to hold them liable would be to enforce a contract where there was no mutuality. The hardship on them would be apparent, even if the State has allowed herself to be delayed by the appeal. With these views of the cause of action, as shown by the declaration, we need go no further into the record, as the judgment must be reversed without a procedendo. 4 G. & J., 395. Judgment reversed.