2846 ARTICLE 75

Generally.

There is no right of removal in a proceeding for a writ of mandamus. Baltimore v.
Libowitz, 159 Md. 28.

The filing of an affidavit by plaintiff in an action for slander, in support of motion
by him for removal, stating that he could not have fair and impartial trial before the
judge on the ground that the judge had, in a previous trial, improperly aided his son,
as counsel for the son's father-in-law, who was defendant in action for slander, held
to constitute contempt of court. Denying intention to commit contempt cannot relieve
person of liability therefor. Ex parte Bowles, 164 Md. 318.

This section referred to in construing Art. 4, Sec. 8 of Md. Constitution. State v.
Cobourn, 169 Md. 113.

Where a party complies with the conditions prescribed by this section, the court (in
all civil cases and in criminal cases punishable by death), has no discretion in matter
of ordering removal, and subsequent proceedings are coram non judice. Griffin v.
Leslie, 20 Md. 18.

An order removing or refusing to remove a case, civil or criminal, if punishable by
death, finally adjudicates a constitutional right and an appeal or writ of error may
be immediately prosecuted. The state may remove a criminal case upon an affidavit
made by state's attorney, and removal may be made at any time before panel of jurors
is completed by being sworn. McMillan v. State, 68 Md. 309. And see Griffin v. Leslie,
20 Md. 19; Price v. State, 8 Gill, 297; Kimball v-. Harmon, 34 Md. 402.

Right of removal should be brought before court of appeals by petition assigning
errors, and not by bill of exceptions. Smith v. State, 44 Md. 533; McMillan v. State, 68
Md. 309.

It is within discretion of court to direct removal of case to another court either within
or without the same circuit. Removal of ease from court of common pleas to superior
court of Baltimore City is a removal "to some other court." Weiskittle v. State, 58 Md.
156; Demurgiondo v. Frazier, 63 Md. 95. And see Atlantic, etc., Co. v. Maryland, etc.,
Co., 64 Md. 304.

Right of removal may be waived, and an agreement by a party not to remove a case
in consideration of a promise by other party not to press it to trial at a certain term
prevents a removal at any subsequent term, unless there should be some new cause for
removal. Caledonian, etc., Co. v. Traub, 86 Md. 93. And see Seth v. Chamberlaine, 41
Md. 194. Cf. Biscoe v. State, 68 Md. 294.

The court in which the action was originally instituted retains jurisdiction until
that of court to which case is removed attaches upon receipt of transcript, and former
court has power to determine what constitutes record and to enforce execution of
order of removal. When order of removal need not be signed by judges of court. Seth v.
Chamberlaine, 41 Md. 194. And see Manly v. State, 7 Md. 147. Cf. Biscoe v. State,
68 Md. 294.

A case cannot be tried before court without a jury without consent of both parties,
and such consent should appear, upon appeal, by the record. A suggestion for removal
stating that "the parties believe they cannot have a fair, etc.," not passed upon as
to its validity, but criticised. Desche v. Gies, 56 Md. 137.

The same party cannot remove a ease twice. Cooke v. Cooke, 41 Md. 367; Price v.
State, 8 Gill, 296.

An order for removal of a case to a county which has no existence is void and leaves
case pending as if there had been no order of removal. State v. Manly, 1 Md. 141. Cf.
Stewart v. State. 1 Md. 129; Biscoe v. State, 68 Md. 294.

Purpose of this section; it has been liberally construed. Hayer v. Colton, 43 Md.
422; Cooke v. Cooke, 41 Md. 368; Price v. Nesbitt, 29 Md. 266; Gardner v. State, 25
Md. 152; Griffin v. Leslie, 20 Md. 18.

As to the removal of a case from a state court to a United States court, see Adams
Express Co. v. Trego, 35 Md. 47 and note (b).

For a note reviewing the authorities on the removal of cases, see Wright v. Hamner,
5 Md. 370.

For a case dealing with this section as it stood prior to act of 1874, ch. 364, and now
apparently inapplicable by reason of said act, see Kimball v. Harman, 34 Md. 401.

For cases construing this section as it stood priori to acts of 1874, ch. 364, and 1868,
ch. 180, see Trayhem v. Hamill, 53 Md. 91; Gardner v. State, 25 Md. 146; Griffin v.
Leslie, 20 Md. 18; Raab v. State, 7 Md. 483; State v. Shillinger, 6 Md. 449; Wright v.
Hamner, 5 Md. 370; Negro Jerry v. Townshend, 2 Md. 274; Stewart v. State, 1 Md. 129;
Price v, State, 8 Gill, 295; Peters v. Van Lear, 4 Gill, 262; Cromwell v. State, 12 G. &
J. 257; Oliver v. Palmer, 11 G. & J. 144; State v. Dashiell, 6 H. & J. 269; Queen v.
Neale, 3 H. & J. 158.

Cited but not construed in Worman v. Hagan, 78 Md. 164.

As to removal of cases from courts of law to courts of equity, see sec. 124. As to case
removed upon question reserved for court in banc, see sec. 132. As to removal of a
case ordered by court of appeals, see art. 5, sec. 27. As to costs in removed cases, see art.
24, sec. 1, et seq.

See art. 4, sec. 8, Md. Constitution.