Brack v. Bar Ass'n of Baltimore City, Inc.
Decision Date | 18 December 1945 |
Docket Number | 54. |
Citation | 45 A.2d 102,185 Md. 468 |
Parties | BRACK v. BAR ASS'N OF BALTIMORE CITY, Inc. |
Court | Maryland Court of Appeals |
Rehearing Denied Jan. 18, 1946.
Appeal from Baltimore City Court, J. Abner Sayler, Judge.
Mandamus proceeding by William F. Brack against the Bar Association of Baltimore City, Inc., commanding defendant to cancel withhold, and withdraw its opposition to the recommendation of counsel for petitioner in certain pending litigation by the Legal Aid Bureau of Baltimore City. From a judgment for defendant entered as result of sustaining of demurrer to petition, petitioner appeals.
Affirmed.
Isaac Lobe Straus, of Baltimore, for appellant.
S Ralph Warnken, of Baltimore (Lee S. Meyer, of Baltimore, on the brief), for appellee.
Before MARBURY, C.J., and DELAPLAINE, COLLINS, GRASON, and HENDERSON, JJ.
This is an appeal from a judgment entered in the Baltimore City Court as a result of the sustaining of a demurrer to a petition for a writ of mandamus.
The petitioner, William F. Brack, was respondent in a suit filed against him in the Circuit Court of Baltimore City, which was still pending. The endeavored to employ an attorney to represent him in that case without success. The then presiding judge of the Circuit Court of Baltimore City refused to hear the petitioner's petition unless he were represented by counsel in the matter of his petition in that case. He, being without counsel, then prepared and filed in the Baltimore City Court a petition for mandamus against the defendant, appellee here. A demurrer and answer were filed to that petition for mandamus by the defendant. While the petition for mandamus was so pending, the judge of the Baltimore City Court sent for Isaac Lobe Straus, Esquire, a member of the Baltimore City Bar, and requested Mr. Straus to act as attorney for the petitioner in the suit for mandamus in the Baltimore City Court. Mr. Straus complied with the request of the Court and entered his appearance for the petitioner in the mandamus case.
The amended petition in the mandamus case now before this Court is quite long and argumentative. For the purposes of this case the material parts of the petition follow. The petitioner as respondent in a suit filed against him in the Circuit Court of Baltimore City has filed a petition in that case setting forth certain grounds for equitable relief in said cause. When the petition came on for hearing the presiding judge refused to hear your petitioner unless represented by counsel. Although he has diligently tried since the time of said hearing to obtain counsel to represent him and has been willing and able to pay counsel, his efforts have been without success. He applied to the Legal Aid Bureau of Baltimore City, an organization composed of and maintained and operated by members of the Bar of Baltimore City, to refer him to an attorney from the Attorney's Reference List, maintained by that Bureau for aid and assistance in performing and discharging its legal duties, and for which legal services the petitioner was ready and willing to pay. The Legal Aid Bureau is the annual recipient of a substantial part of the fund known as the Community Fund to which, for a considerable number of years, the petitioner has been a regular contributor.
The chief counsel of the said Legal Aid Bureau stated to the petitioner that the Bureau would not assist him until the Bar Association of Baltimore City approved of the action requested. Afterwards the said chief counsel informed the petitioner that the Bar Association was opposed to the Legal Aid Bureau referring him to a lawyer and as a result thereof the said Legal Aid Bureau would take no action. Following this report the petitioner inquired of the president of the Bar Association of Baltimore City why its objection and opposition had been so interposed, which inquiry the Bar Association of Baltimore City refused to answer.
He further states that the Bar Association of Baltimore City is an organization composed of the Bar of Baltimore City instituted and maintained for the purpose of co-operating and aiding the administration of justice in the Courts and in promoting and effectuating the protection, security, and benefit of the citizens of Baltimore City, which duty includes the right to be represented by an attorney in court and as a result the petitioner has been deprived of that right. That such action of the Baltimore Bar Association has arbitrarily, unjustly, and wrongfully injured the petitioner and made it impossible for him to obtain counsel, by which the petitioner has been deprived of justice.
He asked 'that a Writ of Mandamus may be issued by this honorable Court directed to the said Bar Association of Baltimore City, Inc., commanding it to cancel, withhold and withdraw its opposition issued by it as aforesaid to the said Legal Aid Bureau of Baltimore City, as the result whereof, as aforesaid, said Bureau has failed and refused to comply with the request made of it as aforesaid by your Petitioner and to perform its proper duty and service to your Petitioner as herein-above set forth.'
To this amended petition the defendant, the Bar Association of Baltimore City, Inc., a body corporate, filed a joint demurrer and answer. The petitioner filed a motion not to receive the defendant's demurrer. The Court sustained the defendant's demurrer to plaintiff's amended petition without leave to the plaintiff to amend, and entered a judgment in favor of the defendant for costs of suit. From that judgment the appellant appeals here.
Appellant contends primarily that by reason of the provisions of the Code, Article 60, Sections 3 and 4, 'Mandamus,' the Court should not have permitted the demurrer to be filed. These sections provide:
'3. The defendant, by the day named in such order, shall file an answer to such petition, fully setting forth all the defenses upon which he intends to rely in resisting such application, which shall be verified by his affidavit.
Although not specifically provided by statute that a demurrer can be filed to a petition for mandamus, it was certainly not the legislative intent to deprive the defendant of such a remedy and to bring for hearing a case in which it clearly appears on the face of the petition that the petitioner is not entitled to the relief asked. Such interpretation would be an interference with the administration of justice and with the purposes for which Courts of law were created. In the case of Ghingher v. Fanseen, 166 Md. 519, 172 A. 75, a demurrer was filed to a petition for mandamus, which demurrer was overruled and the writ of mandamus was ordered to be issued. From that order the appeal was taken. Although in that case the right to file a demurrer to a petition for mandamus was not specifically raised, this Court said at page 524 of 166 Md., at page 77 of 172 A., as to writs of mandamus: ...
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