Tyler v. Murray

Irving, J., delivered the opinion of the Court. The appellee sued the appellant in the Court of Common Pleas, Baltimore City, for assault and battery; alleging, in a single count, in her narr. that “ the defendant on divers days and times assaulted and beat the plaintiff, whereby she was greatly damaged.” On the return of the writ the appellant in his proper person pleaded, “ that he inhabited, dwelt and resided in Baltimore County, and that there had been no non est returned on a summons — 435 — issued in said Baltimore County against him.” To this a replication was filed by the plaintiff, first, directly traversing the facts alleged in the plea, which she prayed might he enquired of by the country; and secondly, a special replication which, having been demurred to and the demurrer sustained, forms no part of this inquiry. The appellant joined issue on the appellee’s traverse which concluded to the country. Afterwards, appellant in person moved the Court to enter judgment of nonpros. against the plaintiff, for the same reasons stated in his plea. To this objection was made by the plaintiff’s counsel, because the motion “ was not filed in time under Bule No. 8 of the Court.” The Court sustained the objection for the reason stated; and this action forms the point of the first exception. The Buie No. 8 not having been put in the record, we are bound to presume, that the Court acted rightly, and in accordance with its rules. Cherry vs. Baker, 17 Md., 75 ; Morrison vs. Welly, 18 Md., 169. The second exception was to the overruling the defendant’s motion, that the issue joined upon the first replication to the defendant’s plea, should be submitted to.the Court without the aid of a jury. In this ruling the Court of Common Pleas committed no error. The Code, Art. 75, sec. 87, provides, that “no person shall he sued out of the county in which he resides, until the sheriff,or coroner of the county in which he resides shall have returned a non est on a summons issued in such county.” By several decisions of this Court it has been settled, that the question of jurisdiction and privilege, arising in any case on this provision of the Code, may he raised either by motion for non joros, or by plea “ in the nature of a plea of abatement.” Hamilton vs. The State, use of Hardesty, 32 Md., 352; Gittings vs. State, use of Ockerme, 33 Md., 463. By the case last cited it was determined, that when the question was presented by a motion for a non — 436 — pros, the enquiry was made before the Court, without the intervention of a jury, and that sucli practice was not obnoxious to any constitutional objection because of its infringing upon the right of trial by jury. Whether a jury trial may be had when the question is raised by plea, in the nature of a plea in abatement, does not seem to have been before raised in this State. The Court in the case of Gittings vs. The State, use of Ockerme, 33 Md., expressly decline to say what ought to be allowed in such case, and cannot be taken, as the counsel for appellant insist, to have made an intimation adverse to the right of jury trial in such case, when craved. In Anderson vs. Garrett, 9 Gill, 120, there was a plea interposed, and it was disposed of by the Court; but it must have been done by consent; for there appears to have been no traverse of the allegation of the plea by way of replication with conclusion to the country, and a joinder of issue ; and the case was submitted to the Court on the plea denying jurisdiction, upon proof taken before the Judge in an application for Habeas Corpus. This case, therefore, settles nothing, except that such plea may be decided by the Court without a jury, if the parties agree ; and does not certainly decide that the parties may not have a jury for the decision of the questions of fact on which the plea rests. In the case at bar, the appellee traversed the appellant’s plea, and prayed that the same might be inquired of by the country. The appellant’ accepted the issue, so presented for trial by jury,'and joined in it¡’ Nothwithstanding the appellant might have avoided a trial by jury, on that question, by electing in proper time, a motion of non pros., it’ does not follow, that when he has elected to plead instead of moving for nonpros., and that plea has been replied to by a direct traverse concluding to the country, on which he joined issue, that then, as a matter of right, he may have that issue, made for a jury, tried before the Court, against the will of his adversary. We — 437 — think the Court of Common Pleas adjudged rightly. He had made his election and was hound by it; and the issue on his plea was properly allowed to go to a jury. In the first; volume of Oldtty on Pleading, page 445, it is distinctly stated that if the replication to the plea to the jurisdiction denies the facts alleged, the conclusion is to the country. He recites numerous and valuable volumes of precedents to support his statement of the practice, in Harris’ Entries, 270, we find the precedents of our own State sustain the same practice. The conclusion thus universally adopted, unerringly indicates that the facts alleged in support of the plea, are triable by a jury ; and that the Court only pronounces judgment for the defendant, or of respondeat ouster, in favor of the plaintiff, as the finding of the jury requires. Mr. Poe in vol. 1 of Ms work on Pleading and Practice, p. 503, states this to he the practice in this State, unless the parties assent to the trial before the Court. We can find no authority for refusing a jury trial where the issue is made up for it; and we can see no good reason why the practice should not prevail of granting it. The third bill of exceptions, and the eighth prayer of the defendant, which was rejected by the Court, and is set out in the seventh hill of exceptions, present substantially the same question, namely, whether the plaintiff was entitled to state her grievances to the jury, offer proof of them, and have an assessment of damages therefor, until the question of jurisdiction had been fully passed upon and determined. After careful consideration of this question, and examination of numerous authorities we are satisfied that the learned Court which decided the question below, has fallen into error. A plea to the jurisdiction, though denominated a plea in abatement, differs from it in some particulars. It partakes also sometimes, as in this case, of the character of a a plea of privilege. Oldtty and Stephen, in their works — 438 — upon Pleading, treat of this plea under a special head, and' as differing from an ordinary plea in abatement. Ordinary pleas in abatements, are pleaded by an attorney after appearance. Pleas to the jurisdiction must be put in before imparlance ; and must be pleaded by the defendant in person. They cannot be pleaded by attorney, for that requires application to the Court for leave to imparl, and would submit to the jurisdiction. Bacon’s Abridgment;, title Abatement, 1 and 2 ; 5 Iiob. Pr., 7. Because it is a denial of jurisdiction ; it is not necessary to sa'y “ he defends force, injury, &c.” in the plea. 5 Rob. Pr., 7. A plea to the merits and to the jurisdiction at one and the same time are so inconsistent, that k plea to the merits is waiver of the plea to the jurisdiction. In Supreme Court of the United States, in Sheppard vs. Graves, 14 Howard, 509, it is so decided; and the Court says, “ it has ever- been received as a canon of pleading, that matters which appertain solely to the jurisdiction of a Court, or the disabilities of the suitor, should never be blended with questions which enter essentially into the • subject-matter of the controversy.” “All defences involving inquiries into that subject-matter imply, may admit the competency of the parties to institute such inquiries, and the authority of the Court to adjudicate upon them. Hence it is that pleas to the jurisdiction pr in abatement, are deemed inconsistent with those which appertain to the merits of the cause ; they are tried upon different views, and result in different conclusions.” The case of Sims vs. Hundley, 6 Howard, 1, expressly affirms the common law principle of pleading, that the question of residence, or right of the parties to sue, cannot be inquired into under the general issue. If the party cannot be permitted to defend himself, and appear by attorney to do it, while he is denying the jurisdiction of the Court, and that is undetermined; it is most illogical and unjust for the Court, while inquiring into the question of jurisdic — 439 — fcion, to assume jurisdiction over the subject-matter, and to decide that by denying jurisdiction he liad confessed the charge in the narr., and to proceed to assess the damages at one and the same time, that the questions of fact on which jurisdiction depends, are being settled. Judge Daniel, in Sheppard vs. Graves, most forcibly and convincingly says, that “ if it could be imagined that the plea to the jurisdiction and the plea to the merits could be regularly committed to the jury at one and the same time, the verdict might involve the following absurdities. Should the verdict he for the plaintiff, the judgment would be, as to the defendant, on one issue that he answer over; and as to the other, that he pay the debt, as to the justice of which he was to answer over.” The present case illustrates the necessity for á separate inquiry, even more strikingly; for in the case put by Judge Daniel, the party would he allowed to make his defence-on the merits, and the inconsistency would only he in the judgment entered. Here, there was no plea to the merits, and because he did not do that which he could not do without admitting jurisdiction, he was treated as if he confessed on the merits ; or as if', he was under judgment hy default, which the Court could not render ; and the question of jurisdiction and assessment of damages was settled hy one and the Eiame verdict. Practically, it was not only denying the defendant the benefit of his plea, to the jurisdiction; hut it was denying him regular trial on the merits. Verdict was for the plaintiff, and judgment was entered, not of respondeat ouster, hut for damages assessed and the costs. All authorities agree that the judgment on the plea to jurisdiction, when against the defendant, is that he shall answer over. The necessary consequence of the Court’s ruling in this case, was the entry of judgment as made, and the defendant was denied his privilege of answering over. The application of the rule of pleading, that what is not denied is confessed — 440 — to a case like this, was erroneous. The question presented was like that made hy demurrer, whether he was called on to plead at all. While that was pending he was under no rule to plead, and the Court's right to make him plead was the very question for trial. The appellant had the right to make that plea, and raise that point, and was as much entitled to have that settled before being required to plead, or go to trial on the merits;, as if he had demurred to the narr. In 1 Sumner, 578, Judge Stoby says, the question of jurisdiction is a preliminary one, and must be taken hy plea. He further says, “ all pleas to the jurisdiction, are objections to entering into the litis contestado, and they must and ought to precede the litis contestado.” It would seem that this question was hardly open in this Court, after what was said in State, use of Ockerme vs. Gittings, 35 Md., 174. In that case the Court below had refused a motion for judgment by default, pending the question whether the Court had jurisdiction by reason of alleged non-residence of the defendant; and this Court said “ the Court below was clearly right, because the question of jurisdiction having been made, it was preliminary to all others.” To render judgment hy default, would have been an exercise of jurisdiction, which the Court said could not he done until jurisdiction was affirmatively determined to he possessed by the Court. If it was unwarrantable for the Court in that case, to entertain a motion for judgment by default, it was not less so in the case at bar for the Court, pending that question, to adjudge the defendant to- have confessed the grievances charged, by pleading a want of jurisdiction, and failing to plead to the merits, and to proceed to assess damages, and decide the questions arising on that inquiry. It results ’from what we have said, that the Court erred in its ruling in the third hill of exceptions, and on the defendant's eighth prayer, embraced in the seventh hill of exceptions. — 441 — The jury should have been restricted to the single inquiry touching residence. If it did result in two jury trials in the same case, it would he upon two different phases of it, which could not be tried together. No inconvenience, hut delay, could result from it; and that the undeniable rights of the defendant involved. It is barely possible, the same jury might be selected, hut in that case, they would of necessity he sworn over again upon a different issue. The cases, where the same jury at the same time have passed upon the ahalement plea, and assigned damages also, were not cases like this, wherein the plea sets up exemption by statute of the defendant from suit, in the jurisdiction where the suit was brought; and cannot be followed in this case and Slate. We have found no case precisely like this, and if one exists, we should be loth to follow it, in view of the meaning and object of the statute, as we understand it. The remaining questions, which it is necessary for us to decide, dppend for their solution upon the construction of Art. *T5, sec. 8*7, of the Code of Genera] Laws; and what kind of residence that section contemplates and requires that a defendant shall have, in a county or city, to make him amenable to civil suit therein. Numerous definitions of residence are to he found in the hooks, and we have been cited to a-great many cases upon the subject in the hooks, to very few of which we shall refer; for what the word means in any particular statute, depends upon its purpose and the phraseology of the context. Each case must he decided upon the particular language of the statute, and the circumstances giving rise to the question. To fulfil the intention and requirements of some statutes, a commercial or business residence might he all the law required; whilst'to gratify the intention of another statute, it may he necessary to hold residence to he more than a business residence, and to mean all that the word domicile means in its strictest and most technical application. In — 442 — .the statute, we are considering the word “lives,” is used as synon'omous with “resides;” and indicates that more than a bare business residence, or temporary sojourn in a place, whs intended by the law. In the Gittings and Ockerme Case, (35 Md., 169,) this Court uses the word “home,” as synonymous with the word “ resides,” as used in this statute; thereby indicating that such was the real meaning of the statute’s language. Passing upon the question, whether a motion for non pros, was made in time, when it was not made till the first day of the term after the return day of the writ, this Court said: “"Looking to the object contemplated by this statute, that of preventing a party from being liable to suit, away from his home, and as it might be in a county remote from that of his residence, the provision should be applied in such reasonable manner, as not practically to render it useless.” Here, they expressly recognize the meaning of the statute, not to be a temporary residence or a business residence, but to mean something very different, and what the Court there calls home. The statute contemplates the permanent fixed home of the party; whither, when the objects of temporary absence, (and it may be of business residence,) were accomplished, the person turned for social life; where his family, if he had one, usually dwelt; to which his mind turns when away, and where he has the present purpose of returning and remaining. It is not the place, where a man happens to be temporarily residing, even though it-be with his family; for, a man may, for convenience sake, have a 'temporary residence and quasi home, which is not his home and residence proper ; and, unless he has-abandoned the latter for the former, with intention of permanently remaining from it, the newly .chosen residence is not his domicile. Dicey on Domicile, ,page 16, says, “If the intention of permanently -residing in a place exists, a residence in pursuance of that intention, however short, will establish a domicile.” The quos — 443 — tion of intention, is a material ingredient. This Court said, in Dorsey vs. Kyle, 30 Md., 512, that a man’s domicile may he one place, while the .actual residence wa^ in another. Many illustrations of this might he dráwn from the State officers in the various departments of the State, and United States Government. It is clear, the statute is not gratified by the defendant having less than a fixed home; which he has no present purpose of exchanging for another in a different jurisdiction ; or which, if he has, he has not yet executed. It is, at least, such a residence as will draw after it a man’s personal property, for the purpose of taxation ; and to change it, must require the concurrence of the acts and intention requisite to change the situs of personal property, for the purpose of taxation. What is necessary, in such case, to effect a change of residence, this Court has determined in the case of Stoddart vs. Ward, 31 Md., 563. There the Court decided that the intention alone to remove, though definitely formed, was insufficient; it must he carried out by actual removal. We also refer to Lamb vs. Smythe, 15 Meeson & Welsby, 433, where a like construction was given to the wmrd residence, in a statute of analogous character. Applying this view and construction of the statute to the rulings of the Court upon the various prayers submitted, it is clear that the Court erred in adopting a theory of business residence as sufficient to gratify the requirements of the statute. The first prayer of the plaintiff, (and contained in the seventh hill of exceptions) was granted by the Court. That prayer after reciting, the facts necessary to constitute a business residence, instructed the jury if they found those facts then the defendant had a business residence in Baltimore City, and the plaintiff was entitled to recover. This was clear error. And it is not helped by the fact that it was granted in connection with other instructions given by the Court in lieu of the defendant’s prayers on that subject; for, if the first paragraph of the — 444 — Court’s instructions could be understood as intended to define tbe kind of residence necessary to maintain tbe suit’ it is so wholly inconsistent with the first prayer of the plaintiff, it was error to grant both, for it was misleading to the jury, and they would not know which theory bound them. But the first part of the Court’s instructions is followed by a paragraph indicating clearly, that if they found the facts in the first prayer, such finding would still entitle the plaintiff to recover. The Court erred in not putting distinctly before the jury the facts they were to find to constitute residence proper, and not business residence, which last the statute does not intend. The fourth prayer of the plaintiff which was granted was obnoxious to the same objection, that it conveyed the idea of a business residence, and did not define what was necessary to make a residence 'such as we have indicated; and left the jury too wide a' field for inferences. The first prayer of the defendant was properly rejected. It did not define what was necessary to constitute residence, but left it to the jury to determine for themselves. The second, third and fourth prayers of the defendant properly laid down the law, and ought to have been, granted. It is proper to remark, however, that they were constructed with reference to the case as then presented and being tried. Upon a new trial the question will first be confined to the single question of residence vel non, and those prayers should not conclude, as before, that the plaintiff “ is not entitled to recoverbut if these facts are found “ that the plaintiff cannot .maintain this suit.” The sixth prayer of the defendant was correct; and ought to have been granted; for if the admissions referred to, were as stated, admissions long before suit brought, and the jury should find that when the suit was brought the defendant had his home in Baltimore County, and not in Baltimore City, the admissions did not establish a residence in the city when the suit was brought. The fifth prayer simply asserts — 445 — that by pleading to the jurisdiction, the defendant had not admitted the assault or any assault, and that before the jury could find for the plaintiff, they must find some assault to have been committed. This was a proper legal proposition; but as we have before stated, the question of assault, nor the amount of damages was not then cognizable by the jury. The plea to the jurisdiction confessed nothing. If that was decided against him, he would then he entitled to demur to the narr. or to traverse its allegations in any way consistent with the rules of pleading applicable to such suits. And if after trial, the verdict and final judgment should be against.him, lie would be entitled to appeal, when alleged error in a ruling of the Court in either trial before the jury would he open for review. Inasmuch as we have decided, that no question concerning the assault, its character or measure of redress, ought to have been allowed till the question of jurisdiction was finally settled, it is not necessary for us to decide the question of election among the assaults proved, which is presented by the fifth bill 6f exceptions. It is hardly possible that the same question will again arise in this ■ case. The only remaining question in the case is presented by the fourth exception. Having announced that the plaintiff had closed her testimony on the subject of residence, the following offer was made in writing: “The plaintiff offers by competent testimony to prove the amount of damages claimed in the narr.” The exception says “ hut the defendant objected to the proposal and offer, and moved the Court to instruct the jury that there was no legally sufficient evidence to sustain the issue joined on the part of the plaintiff.” The Court overruled the objection and motion. So far as this exception presents the question whether the plaintiff should have been permitted to offer evidence of the assault and damages, we — 446 — have already expressed our opinion, that it was error to so permit, and it is not necessary to repeat. With respect to the motion that the Court take the case from the jury, on the question of residence, by instruction that there was no legally sufficient evidence to enable them to find for the plaintiff, on that issue, we cannot say there was error. There was some evidence on both sides of the question, and it was for the jury to weigh it, and find as they might think it compelled or warranted them. We will reverse and remand the cause for a new trial in accordance with'the views expressed in this opinion. (Decided 19th January, 1882.) Reversed and new trial ordered.