Associated Transport, Inc. v. Bonoumo

• Decision Date: 11 November 1948
• Docket Number: 14.
• Citation: 62 A.2d 281,191 Md. 442
• Parties: ASSOCIATED TRANSPORT, Inc. v. BONOUMO.
• Court: Maryland Court of Appeals

62 A.2d 281

191 Md. 442

ASSOCIATED TRANSPORT, Inc. v. BONOUMO.

No. 14.

Court of Appeals of Maryland

November 11, 1948

Appeals from Court of Common Pleas of Baltimore City; W. Conwell Smith, Chief Judge.

Action by Charles Harlan and wife against Associated Transport Inc., for injuries received in automobile collision, wherein defendant filed third-party complaint against Antonio Bonoumo, driver of automobile in which plaintiffs were passengers, for contribution. From a judgment, Associated Transport, Inc., appeals.

Appeals dismissed.

F Gray Goudy, of Baltimore (H. Beale Rollins, of Baltimore, on the brief), for appellant.

Ward B. Coe, Jr., of Baltimore (Carman, Anderson & Barnes, of Baltimore, on the brief), for appellee.

Before MARBURY, C.J., and DELAPLAINE, COLLINS HENDERSON, and MARKELL, JJ.

MARKELL Judge.

On September 29, 1945, appellant's tractor-trailer and appellee's automobile collided. Charles Harlan and his wife, passengers in appellee's car, were injured. Each sued appellant for damages for negligence. On July 10, 1947 appellant filed in each case, before pleading, a motion for leave to make appellee a third party defendant, and pursuant to an order granting leave, a third party complaint against appellee, alleging that the collision 'was caused or contributed to' by negligence of appellee in the operation of his automobile, and that appellee 'is or may be liable, solely or as a joint tortfeasor,' to plaintiff, or to plaintiff and appellant, if appellant 'should be held liable for all or part of plaintiff's claim,' and prayed judgment against appellee, or in the alternative against appellee and appellant, 'if the jury should find both liable for any sum' adjudged to be due plaintiff. The orders granting leave directed plaintiffs to amend their pleadings, so as to assert against appellee any claims which might have been asserted against him had he been joined originally as defendant. Plaintiffs did not amend their declarations. The third party complaints were filed under section 27 of the Uniform Contribution Among Tortfeasors Act, Acts 1941, ch. 344, Acts of 1947, ch. 717, Code Supp.1947, art. 50, § 27, now superseded by the rules of this court applicable only to cases instituted after January 1, 1948. East Coast Freight Lines v. Mayor and City Council of Baltimore, Md., 58 A.2d 290, 301.

Process against appellee, a resident of Philadelphia, was served, under the statute, Art. 66 1/2, sec. 106, by service on the Secretary of State and notice by registered mail. Appellee mailed the papers received by him to one of plaintiff's lawyers, who was, or appellee thought or supposed was, also his lawyer. One of plaintiff's lawyers returned, or intended to return and thought he had returned, the papers to appellee. Some one blundered, and on October 8, 1947 'judgment by default for want of a plea' was entered in each case in favor of appellant, third party plaintiff, against appellee, third party defendant. On December 3, 1947, appellee filed in each case a petition to strike out the judgment, and a show cause order was passed. After answer by appellant and hearing, including testimony, on December 24, 1947, an order was entered in each case by which the judgment by default was stricken out, with leave to appellee to plead, which he did forthwith. On February 16, 1948, on petitions of appellee, judgments of non pros against plaintiffs were entered, and a jury was sworn and trial of the cases begun. On February 18, 1948, verdicts were rendered in favor of the plaintiffs for $2500 and $600 respectively against appellant only and 'in favor of the third party defendant,' appellee. On February 24, 1948, judgments on the verdicts were made absolute against appellant, and for appellee for costs. On March 10, 1948, the judgments in favor of plaintiffs were entered 'Agreed, Settled and Satisfied.' Appellant says they were paid in full to plaintiffs.

On March 17, 1948, appeals were entered by appellant 'from the judgment in favor of' appellee 'and particularly with reference as to a ruling of Judge Smith of December, 3, 1947, on petition of third party defendant to strike out judgment by default.' Apparently appellant meant to refer, not to the show cause orders of December 3, 1947, but to the orders of December 24, 1947, striking out the judgments by default.

Ordinarily an interlocutory order or ruling, e.g., an order sustaining or overruling a demurrer, or a judgment by default (Sharp v. Bates, 102 Md. 344, 349, 62 A. 747), is not appealable, but when final judgment is rendered, such interlocutory orders or rulings may be reviewed on appeal from the final judgment. Poe on Practice, Tiffany Edition, § 826. However, a judgment by default is as binding as any other judgment and establishes the liability of the defendant to the plaintiff for something, though not the amount. Poe, supra, § 372; Green v. Hamilton, 16 Md. 317, 329, 77 Am.Dec. 295. If a third party judgment by default is in this respect like any other judgment by default, the judgment by default in the instant case would have been in effect final, so far as issues between appellant, as third party plaintiff, and appellee, as third party defendant, are concerned. Adjudication of issues between the original plaintiffs and appellant, as to liability and amount, would have left only the...