Cromwell v. Ripley

• Decision Date: 08 February 1971
• Docket Number: No. 360,360
• Citation: 273 A.2d 218,11 Md.App. 173
• Parties: Eldred A. CROMWELL v. Merle L. RIPLEY, Executrix of Estate of Ralph P. Ripley.
• Court: Court of Special Appeals of Maryland

Page 173

11 Md.App. 173

273 A.2d 218

Eldred A. CROMWELL v. Merle L. RIPLEY, Executrix of Estate of Ralph P. Ripley.

No. 360.

Court of Special Appeals of Maryland.

Feb. 8, 1971.

William E. Gallagher, Rockville, for appellant.

William H. Clarke, Rockville, with whom was Matthew J. Kastantin, on brief, Rockville, for appellee.

Argued before MORTON, ORTH and MOYLAN, JJ.

ORTH, Judge.

An action brought against a dead man is a nullity. Burket v. Aldridge, Adm'r., 241 Md. 423, 430, 216 A.2d 910; Hunt v. Tague, 205 Md. 369, 378-379, 109 A.2d 80. This case was a farrago of questions from the initiation of the suit in the Circuit Court for Montgomery County to the denial of the court to vacate a judgment in favor of the appellee for costs. The questions arose in large measure because appellant brought an action against a man who had been dead for almost ten months. The declaration filed on 3 May 1968 by Eldred A. Cromwell, appellant here and plaintiff below, alleged that the negligence of Ralph P. Ripley, the defendant herein designated, caused an accident on 18 August 1966 between a car driven by Cromwell and a car driven by Ripley. Cromwell sought $150,000 for personal injuries, damages, losses and expenses. However, Ripley had died on 29 June 1967 ¹ and the writ of summons of him was returned 'Mortuus Est' on 7 May 1968. Although appellant thus had knowledge of Ripley's death, appellant's next action, according to the record, was not until 3 July 1969 when he filed a motion for leave to amend the declaration by substituting Merle L. Ripley, Executrix of the Estate of Ralph P. Ripley, deceased, as the defendant in the place of Ralph P. Ripley. ² An order of court dated 29 August granted the leave to amend ³ and the amended declaration naming Merle L. Ripley, Executrix of the Estate of Ralph P. Ripley (appellee) as the defendant was filed on 4 September. Appellee was summoned to the November return day, the writ issued to the October return day having been returned non est. On 7 November appellee filed a 'Demurrer and/or Motion Raising Preliminary Objection', see Rules 345 and 323, one of the grounds for which was that the Statute of Limitations had run. This document was treated by the lower court, so far as can be ascertained from the record, only as a motion raising preliminary objection, and it was denied on 18 December because limitations was not one of the defenses authorized for such a motion by Maryland Rule 323. Appellee does not challenge this action of the lower court. On 31 December she filed an answer to the amended declaration, making a general issue plea and special pleas 'that the Plaintiff's action is barred by the Statute of Limitations' and 'that this suit was not filed within six (6) months after the representative of the Estate was appointed.' Appellant does not challenge the form or timeliness of the pleas. See Rules 342 c 2(a), 309 a and 323 c. Nor did he question it below. Rule 322. And see Foos v. Steinberg, 247 Md. 35, 38, 230 A.2d 79; Waldman v. Rohrbaugh, 241 Md. 137, 139, 215 A.2d 825; Hoover v. Williamson, 236 Md. 250, 255-256, 203 A.2d 861. On 23 January 1970 appellee moved for summary judgment 'inasmuch as it would appear that Statute of Limitations is a bar to this action.' On 6 February appellant answered the motion, asserting that 'the Statute of Limitations had not run since the accrual of the cause of action and that this action is not, therefore, barred by statute.' Upon hearing on 27 February the motion was granted and judgment absolute was entered in favor of appellee for costs. Rule 610. See Smith v. Barnhart, 225 Md. 391, 170 A.2d 766. On 26 March appellant moved for 'rehearing and/or to vacate summary judgment.' Rule 625 a. On 30 March he noted an appeal from the judgment. ⁴ When the motion came on for hearing he dismissed the appeal. Stacy v. Burke, 259 Md. 390, 400-403, 269 A.2d 837; Tiller v. Elfenbein, 205 Md. 14, 19-21, 106 A.2d 42. And see Visnich v. Washington Suburban Sanitary Comm., 226 Md. 589, 174 A.2d 718. Upon hearing the motion was denied. Appellant appealed 'from the denial of the Motion to Vacate Summary Judgment.'

Since appellant dismissed the appeal from the judgment the question whether the judgment was properly entered is not before us. The appeal here is from the refusal to vacate the summary judgment and the law governing the case was set out in Clarke Baridon Inc. v. Union Asbestos and Rubber Co., 218 Md. 480 at 483, 147 A.2d 221 at 223, and quoted with approval in Ryan v. Johnson, 220 Md. 70, 73-74, 150 A.2d 906, Hamilton v. Hamilton, 242 Md. 240, 242-243, 218 A.2d 684, and Abrams v. Gay Investment Co., 253 Md. 121, 123, 251 A.2d 876:

'After the judgment properly was entered, the question of whether it should or should not be vacated in whole or in part was within the sound discretion of the trial court for the ensuing thirty days. The decisive point no longer was whether there existed a genuine dispute as to a material fact, but rather whether the court was satisfied that there had been shown a reasonable indication of a meritorious defense or other equitable circumstances that would justify striking the judgment-that is, whether the court entertained a reasonable doubt that justice had not been done.' ⁵

Appellant was faced with two deadlines in the commencement of his action. Code, Art. 57, § 1 prescribes that all actions on the case, except for libel and slander, shall be commenced within 3 years from the time the cause of action accrued. See Mumford v. Staton, Whaley and Price, 254 Md. 697, 255 A.2d 359. Code, Art. 93, § 112 as applicable to the case here provided in relevant part that executors and administrators shall be liable to be sued in any court of law or equity, in any action (except slander) which may have been maintained against the deceased, provided that such action must be commenced within six calendar months after the date of qualification of the executors or administrator of the testator or intestate; 'except that such action against the estate of a testator or intestate may be instituted after the expiration of six months but within the statute of limitation in the event the deceased was covered by an existing insurance policy at the time of the occurrence, the existence of such insurance coverage not being admissible at the trial of the case and the recovery in the event of a judgment against the estate to be limited to the extent of such existing insurance.' ⁶ Since Ralph P. Ripley had died before suit was filed against him, the action ahd to be commenced both within 3 years from 18 August 1966, the time the cause of action accrued and within 6 calendar months after 11 July 1967, the date of qualification of the deceased's Executrix, unless, as to the latter limiting period, there was an insurance policy existing on 18 August 1966 which covered the deceased with respect to his alleged negligent act in which event only the 3 year period applied. Burket v. Aldridge, Adm'r., supra, 241 Md. at 430, 216 A.2d 910. See Dixon v. Checchia, 249 Md. 20, 238 A.2d 247.

With regard to the three year period of limitations the reason for the delay between the presentation of the motion to amend the declaration and the filing of the amended declaration is significant, for in the interim, three years had elapsed from the time the cause of action accrued. An affidavit by appellant's counsel, made in support of the answer to the motion for a summary judgment set out that 'on or about July 5, 1969, he filed with the Circuit Court for Montgomery County, Maryland, on behalf of the Plaintiff, his Motion for Leave to File Amended Declaration together with his Amended Declaration and that subsequent thereto, he discovered on August 29, 1969, upon searching the file of this case at the office of the Clerk, that the said Motion for Leave to File Amended Declaration was pinned to the back of said file together with the said Amended Declaration; that he promptly effected the official marking of the said Motion as filed and left the said Court file with the Clerk, as instructed, for transmittal to the Court for its consideration; that he received notice on September 3, 1969, that (the) court had entered its Order allowing the filing of the previously submitted Amended Declaration.'

At the hearing on the motion for summary judgment the court discussed the affidavit. It said: 'The mere filing in the Clerk's office or depositing in the Clerk's office, as the case may be, of a motion for leave to amend coupled with the proposed amended declaration does not seem to the Court to constitute a filing of suit for the purposes of the Statute of Limitations.' Appellant offered no evidence on the issue but his counsel told the court that in July when he left the motion to amend in the Clerk's office 'it was represented to me by one of the employees in the Clerk's office it would be sent to the duty Judge for his circumspection. Why it was not acted upon at that time I am afraid, Your Honor, I have no recollection or evidence whatsoever to state to the Court this morning as to exactly what the reason for nonaction at that time was. I received no communication from the Court that the motion itself was irregular, that the amended declaration was irregular, or a card indicating that for some reason the motion was not acted upon.' When he found the motion and amended declaration in the file on 29 August he had the motion stamped as filed 3 July and then saw that it was directed to the proper duty judge for consideration. The court said: 'It occurs to me that it was counsel's responsibility, * * * to keep himself abreast of the litigation of which he is counsel of record, and it was your responsibility to see, as I view it, that the motion for leave to file the amended declaration, purportedly filed on July 3, 1969, got to the attention of the Judge of the Court and was acted upon before the Statute ran on August 18.' Counsel admitted: 'Under the...