Ashley-Cooper Sales Services v. Brentwood Mfg. Co., Civ. A. No. 10961.
Decision Date | 23 December 1958 |
Docket Number | Civ. A. No. 10961. |
Citation | 168 F. Supp. 742 |
Parties | ASHLEY-COOPER SALES SERVICES, Inc., Plaintiff, v. BRENTWOOD MANUFACTURING COMPANY, Inc., Rink Building Systems, Inc., Mr. Joseph L. Pavlock, Mr. Howard F. Rink, Mr. Howard J. Thomas, Esq., Mr. James F. Carney, Mr. A. P. Pendleton, Defendants. |
Court | U.S. District Court — District of Maryland |
David Sheer, Takoma Park, Md., for plaintiff.
C. Ferdinand Sybert, Ellicott City, Md., and Stedman Prescott, Jr., Silver Spring, Md., for Carney and Pendleton.
Howard J. Thomas, Silver Spring, Md., for remaining defendants.
This case, instituted on October 14, 1958, in which Ashley-Cooper Sales Services, Inc., a Massachusetts corporation, is plaintiff, seeks recovery from Brentwood Manufacturing Company, Inc., a Maryland corporation, Rink Building Systems, Inc., a Maryland corporation, Joseph L. Pavlock, Howard F. Rink and Howard J. Thomas, residents of Prince George's County, Maryland, and James F. Carney and A. P. Pendleton, residents of "Baltimore City County of the State of Maryland."1
The complaint is unsigned, but attached to it are verifications by Frederick B. Sheer, the chairman of the board, president, and treasurer of plaintiff, on behalf of the corporation, and as officer of the corporation, the verifications being "in accordance with the form given in Walker on Patents, section 886 F." There was also attached a "memorandum of an address within the District where service can be made upon" the plaintiff "it being expressly understood that the sole purpose of the address within the District is to enable the plaintiff to maintain and defend all aspects of this case such as service, etc."
The complaint alleges that "the jurisdiction of this Court is based upon the fact that the claims herein exceed three thousand dollars (or ten thousand dollars, as someone has suggested to plaintiff that the three thousand figure has been changed to ten thousand), that diversity of citizenship is present, and upon any and all other applicable rules."
The claims, except as against Carney and Pendleton, apparently2 are for breach of contract, conspiracy and fraud. The claims against Carney, Clerk of the Superior Court of Baltimore City, and Pendleton, Deputy Clerk of the Supreme Bench of Baltimore City, are stated in the complaint as follows:
From exhibits to the complaint, and from the affidavit and exhibit in support of the motion on behalf of Carney and Pendleton to dismiss (which allegations and exhibit have not been controverted), it appears that on August 22, 1958, the corporate plaintiff attempted to file a bill of complaint in the Superior Court of Baltimore City, at which time the plaintiff was not represented by an attorney duly licensed to practice law in the State of Maryland, but was represented by Frederick B. Sheer, its President; that by Order3 of the Supreme Bench of Baltimore City, dated the 8th day of December, 1955, and in force on August 22, 1958, the Clerks of all the courts that are styled the Supreme Bench of Baltimore City (which includes the Superior Court of Baltimore City) were "instructed not to accept any pleading or other paper offered for filing, in behalf of a corporation by anyone other than a person who represents himself or herself to be an attorney duly licensed to practice law in the State of Maryland, in any suit or action at law or in equity * * * in or to which such corporation is a party * * *"; and that it was solely by virtue of this order that Carney and Pendleton refused to accept plaintiff's bill of complaint for filing in the Superior Court of Baltimore City.
Plaintiff filed a petition, superseded by a motion, for an interlocutory injunction "against alleged order passed by the Supreme Bench of Baltimore City on the 8th day of December, 1955, which was employed by the defendants Carney and Pendleton to the effect of denying plaintiff of constitutional rights * * *", although "Plaintiff is of the opinion that the order of December 8, 1955 was revoked inasmuch as it is inconsistent with the Maryland Rules of September, 1956." Plaintiff asks that this motion be heard, "Judge Watkins and two other appropriate Judges presiding", or "as many Judges presiding as the equity and nature of this case and motions thereto require. * * *"
Assuming that plaintiff seeks to invoke the provisions of U.S.C. Title, 28, section 2281, in its application for a three-judge court to hear the motion for an interlocutory injunction against the order of the Supreme Bench of Baltimore City of December 8, 1955, and passing the questions whether such order is a "State statute"4, whether as to defendants Carney and Pendleton the necessary jurisdictional amount is alleged5, and whether in any event a clerk, relying even upon an invalid court order, can be held liable in damages6, before this court should proceed to invoke the constitution of a three-judge court in the manner prescribed in U.S.C. Title 28, section 2284, it must first be satisfied that the claim of unconstitutionality is not obviously without merit, and that such claim has not previously been decided by the United States Supreme Court adversely to the position of the party seeking such interlocutory injunction. Ex parte Poresky, 1933, 290 U.S. 30, 32, 54 S.Ct. 3, 78 L.Ed. 152.
Plaintiff's contention is that the rule of the Supreme Bench of Baltimore City requiring pleading on behalf of corporations to be filed by an attorney at law duly licensed to practice in Maryland, is unconstitutional and should be enjoined. But the Federal courts, including the Supreme Court and the Fourth Circuit Court of Appeals, have held that a corporation cannot appear in court in proper person, but must appear by attorney authorized to practice before the court. Osborn v. United States Bank, 1824, 9 Wheat. 738, 829, 830, 22 U.S. 738, 829, 830, 6 L.Ed. 204 ( ); Commercial & Railroad Bank of Vicksburg v. Slocomb, Richards & Co., 1840, 14 Pet. 60, 65, 39 U.S. 60, 65, 10 L.Ed. 354 (); Acme Poultry Corp. v. United States, 4 Cir., 1944, 146 F.2d 738, 740, certiorari denied, 1945, 324 U.S. 860, 65 S.Ct. 865, 89 L.Ed. 1417 (); Heiskell v. Mozie, 1936, 65 App.D.C. 255, 82 F.2d 861, 863, where the underlying reason for the rule was stated:
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