Treusch v. Kamke

Stone, J., delivered the opinion of the Court. In this case there was a general demurrer to the declaration. The demurrer was,overruled, and the plea of not guilty entered; the case was tried before a jury, and the verdict being against the defendant below, the appellant, he has appealed to this Court. The judgment of the Court below in overruling the demurrer is open for review in this Court. In deciding upon the question raised by the demurrer, we are confined to the declaration alone, and cannot consider the subsequent verdict. It is a matter of regret that so much of the Act of 1856, ch. 112, that required the particular grounds of the demurrer to be assigned, should not have been re-enacted in the Code. Without such requirement the attention of the Court and counsel is often not called to the objectionable part of the declaration or plea until the case reaches the appellate Court, and the opportunity for amendment is lost, except at the cost of another trial. The case before us, we think, well illustrates the advantage of the part of the Act of 1856, above alluded to. We are well satisfied that had the attention of either the Court or the counsel been called to the defect, apparent upon the face of this declaration, it would have been amended before the trial. The fatal and only defect in the declaration in this case, at least as to the first and second counts, is the fact that no damages are laid or claimed in it. Under the old system of pleading, such. omission was certainly fatal, even after verdict. Faget vs. Brayton, 2 H. & J., 350, and Chilton vs. Jones, 4 H. & J., 62, and Kennerly’s Ex’rx vs. Wilson, 1 Md., 102. While we must not be understood as deciding that under our present simplified rules of pleading and practice, such omission would be fatal on a motion in arrest of judgment, as that point is not before us, yet it is clear that the omission of all damages in a declaration is a defect in substance, and is fatal on demurrer. [277] (Decided 11th March, 1885.) That a declaration which entirely omits the amount of damages claimed by the plaintiff is substantially defective, must be apparent from the consideration that the amount ■of the damages claimed in an action of tort is, in this State, a jurisdictional fact. The Court of Common Pleas of Baltimore City, in which this suit was instituted, has not •original jurisdiction in all cases of tort. It has only original jurisdiction in those cases of tort where the damages laid or claimed exceed the sum of one hundred dollars. Where the damages claimed are less than that sum, justices of the peace have exclusive jurisdiction. The jurisdiction therefore attaches to one or the other of these tribunals, as the damages are laid and claimed. It must appear affirmatively on the face of the declaration, that the Court in which the suit was brought had jurisdiction to try the case. This notappearing in this narr., we must reverse the judgment, and remand the case for the purpose of allowing the plaintiff an opportunity to amend his pleading. We see no error in the one instruction given by the Court that is especially applicable to this case. The ■opinion in the case of Caroline Kamke covers the other points raised in the record. Judgment reversed, and cause remanded.