Clarke Baridon, Inc. v. Union Asbestos & Rubber Co.

• Decision Date: 24 December 1958
• Docket Number: No. 90,90
• Citation: 147 A.2d 221,218 Md. 480
• Parties: CLARKE BARIDON, Inc., et al. v. UNION ASBESTOS & RUBBER COMPANY.
• Court: Maryland Court of Appeals

Page 480

218 Md. 480

147 A.2d 221

CLARKE BARIDON, Inc., et al. v. UNION ASBESTOS & RUBBER COMPANY.

No. 90.

Court of Appeals of Maryland.

Dec. 24, 1958.

Harold E. Mott and Welch, Mott & Morgan, Washington, D. C., for appellants.

J. Hodge Smith and Kelley & Smith, Rockville, for appellee.

Before BRUNE, C. J., and HENDERSON, HAMMOND, PRESCOTT and HORNEY, JJ.

HAMMOND, Judge.

The appeal is from the refusal to vacate a summary judgment against Clarke Baridon and Clarke Baridon, Inc., entered after they had failed to make any defense.

The suit was for $4,000 (the unpaid balance of the price of insulated pipe purchased from Union Asbestos and Rubber Company in 1954) and interest of $1,892.74. A motion for summary judgment, with supporting affidavit in proper form, was filed with the declaration. After the defendants had been summoned in December 1957 there was, in their words, 'constant communication' between the lawyers for the plaintiff and the defendants, with offers and counter offers, in an effort to effect a settlement, but the defendants did not file pleas or an affidavit of defense. A hearing on the plaintiff's motion for summary judgment was set for March 21, 1958. Although the defendants' lawyer had a month's notice of the date of the hearing, he did not appear; but, in absentia, presented a motion for continuance, supported by his affidavit that he was scheduled to appear that day before the Federal Communications Commission on a show cause order as to a television station. Judge Anderson denied the motion and entered judgment for both principal amount and interest.

Within thirty days defendants moved to set aside the judgment as to the interest and for a hearing on the merits, or in the alternative, a rehearing on the motion for summary judgment, as to the principal sum. Accompanying defendants' motion was the affidavit of Clarke Baridon in which he denied that any interest was due, and alleged that he had been caused expense in installing the pipe because the 'dimensional variations' of its insulation were excessive, that he 'would estimate' this expense to be 'approximately $2,500 to $3,000' and that in his 'opinion' he had a right to rely on what he assumed to be a warranty and should not be called on to pay the full price for the pipe. Judge Anderson overruled the motion as to $4,000 of the judgment and struck out the interest portion of $1,892.74, and defendants appealed.

Counsel for appellants continued to spurn Maryland and succumb to the seductions of Washington. When the case came on for argument in this Court in regular sequence, long before announced, no one appeared for appellants. In response to a call from the Clerk, the office of appellants' counsel said he was conducting a tour through the State Department. Again in absentia, appellants' lawyers argue in their brief that Judge Anderson abused his discretion in not continuing the hearing on the motion for summary judgment and erred in not setting aside the judgment in its entirety. We cannot agree.

The defendants were in default, having failed to plead or show a genuine dispute as to a material fact, and the case was ripe for judgment. Maryland Rule 610 (subd. a, par. 2; subd. c, par. 3; subd. d, par. 1); Phelps v. Herro, 215 Md. 223, 227, 137 A.2d 159; Frush v. Brooks, 204 Md. 315, 104 A.2d 624. The granting of a continuance is ordinarily in the sound discretion of the trial court. Plank v. Summers, 205 Md. 598, 605, 109 A.2d 914, and cases cited. There was no abuse of...