The Court of Appeals of Maryland, in dismissing this case,
said:
"The defendant, long after the time fixed by the rule of court,
demanded a jury trial, and, without waiting for the action of the
court upon his motion, and indeed before there was any trial of the
case upon its merits and before any judgment, final or otherwise,
was rendered, this appeal was taken from what the order of appeal
calls the order of court of the 6th of February, 1896, denying the
defendant the right of a jury trial; but no such order appears to
have been passed. On the day mentioned in the order of appeal,
there was an order passed by the court below fixing the case for
trial, but there was no action taken in pursuance of such order
until subsequent to this appeal. There is another appeal pending
here from the orders which were ultimately passed."
Held that no federal question was disposed of by this
decision.
This cause was argued with No. 91, the preceding case. The case
is stated in the opinion.
MR. JUSTICE McKENNA delivered the opinion of the Court.
This is a writ of error to the Court of Appeals of the State of
Maryland to review a judgment made by it, and which is hereafter
set out.
The action was at law for the recovery of $8,000 for money
payable, goods sold, and work done and materials furnished by
defendant in error (plaintiff in the court below) to plaintiff in
error (defendant in the court below), and was brought in one of the
city courts of Baltimore,
Page 172 U. S. 473
Maryland. To the declaration a plea was filed February 12, 1895,
averring that the defendant was never indebted and never promised
as alleged. On January 13, 1896, under the Maryland practice, upon
the suggestion of the defendant (plaintiff in error) that it could
not have a fair trial, the case was "transmitted" to the Supreme
Court of Baltimore, Maryland.
The record contains a number of motions and exceptions to the
rulings on the motions. One of these exceptions was that the ruling
of the court deprived plaintiff in error of a jury trial under a
law of Maryland and the rules of court made in accordance
therewith, which law and rules plaintiff in error alleges are
repugnant to the Constitution of the United States. Another
objection was to an order made on the 6th of February, 1896,
requiring plaintiff in error to employ new counsel, the cause,
under the practice of the court, having been peremptorily set for
trial on the 20th of February, 1896, after having been twice
postponed for the alleged sickness of counsel.
An appeal was entered from this order and perfected. The Court
of Appeals dismissed it December 3, 1896, saying:
"The appeal in this case having been prematurely taken, the
motion to dismiss it must prevail."
"The defendant, long after the time fixed by the rule of court,
demanded a jury trial, and without waiting for the action of the
court upon his motion, and, indeed, before there was any trial of
the case upon its merits and before any judgment, final or
otherwise, was rendered, this appeal was taken from what the order
of appeal calls the 'order of court of the 6th of February, 1896'
denying the defendant the right of a jury trial; but no such order
appears to have been passed. On the day mentioned in the order of
appeal, there was an order passed by the court below fixing the
case for trial, but there was no action taken in pursuance of such
order until subsequent to this appeal. There is another appeal
pending here from the orders which were ultimately passed."
"Appeal dismissed."
No federal question was disposed of by this decision.
Writ of error dismissed.
