Eastgate Associates v. Apper, 156
| Court | Court of Appeals of Maryland |
| Citation | 350 A.2d 661,276 Md. 698 |
| Docket Number | No. 156,156 |
| Parties | EASTGATE ASSOCIATES et al. v. Leonard APPER et ux. |
| Decision Date | 03 February 1976 |
Page 698
v.
Leonard APPER et ux.
[350 A.2d 662]
Page 699
John P. Corderman, Hagerstown, on the petition, for appellants.Darrow Glaser, Hagerstown, on the answer, for appellees.
Before MURPHY, C. J., and SINGLEY, SMITH, DIGGES, LEVINE, ELDRIDGE and O'DONNELL, JJ.
ELDRIDGE, Judge.
In this case, the plaintiffs took an appeal to the Court of Special Appeals from the action of the circuit court granting a motion for a directed verdict. However, there was no entry of a final judgment. The Court of Special Appeals held that the appeal should be dismissed as premature but then proceeded, under Maryland Rule 1071, to decide the substantive issues involved in the case and to order further proceedings in accordance with its opinion. Upon the defendants' petition for a writ of certiorari, we hold that since the Court of Special Appeals was without jurisdiction to entertain the appeal, it was error for that court to invoke Rule 1071 and issue a mandate pertaining to the merits of the case.
Leonard and Beverly Apper filed suit in the Circuit Court for Washington County seeking damages for injuries allegedly sustained by Mr. Apper in the defendants' motel when a bathtub 'handhold' which he was using broke from the wall. At the jury trial, after the close of the evidence presented by the Appers, the trial court granted the defendants' motion for a directed verdict. Pursuant to Rule 552 e, the granting of the motion was entered on the docket on November 26, 1974. The next docket entry, dated
Page 700
December 23, 1974, is: 'Order for Appeal by Plaintiffs Leonard Apper and Beverly Apper, His wife, filed.' No final judgment was entered as required by Rule 567 f.[350 A.2d 663] On appeal, the Court of Special Appeals held that because no final judgment was entered, the appeal was premature. Nevertheless, the Court of Special Appeals, invoking Rule 1071, went on to 'discuss the facts and applicable laws in the light of the substantial merits of the case.' After determining that the grant of the defendants' motion for a directed verdict was unwarranted on the ground that the doctrine of res ipsa loquitur was applicable, the Court of Special Appeals concluded that
'(a)lthough we must dismiss the appeal, we remand the case with direction that judgment be entered in favor of appellees for costs. For a period of thirty days after the entry of judgment, the trial court has revisory power and control over it. Rule 625, § a. Upon a proper and timely motion, the trial judge should strike the judgment and order a new trial. We observe that the order entered by this Court and the opinion on which the order is passed shall be conclusive as to the points finally decided thereby.'
The mandate of the court read, in pertinent part: 'Appeal dismissed; case remanded for further proceedings in accordance with this opinion.' The defendants have filed a petition for a writ of certiorari, complaining about the Court of Special Appeals' determination regarding the applicability of res ipsa loquitur. However, we have granted the petition for a writ of certiorari only to consider whether the Court of Special Appeals may invoke Rule 1071 to decide substantive issues presented in a case appealed prematurely to that court.
The jurisdiction of this Court, and the Court of Special Appeals, is determined by constitutional provisions, statutory provisions and rules; jurisdiction cannot by conferred by consent of the parties. Blocher v. Harlow, 268 Md. 571, 578, 303 A.2d 395 (1973); Lang v. Catterton, 267
Page 701
Md. 268, 275, 297 A.2d 735 (1972); Harford Sands, Inc. v. Levitt & Sons, 27 Md.App. 702, 706, 343 A.2d 544 (1975); Wright v. Nugent, 23 Md.App. 337, 356, 328 A.2d 362 (1974). But cf. Keystone Eng. Corp. v. Sutter, 196 Md. 620, 78 A.2d 191 (1951); Kendall Lumber Co. v. State, 132 Md. 93, 103 A. 141 (1918).Where appellate jurisdiction is lacking, the appellate court will dismiss the appeal sua sponte, Diener Enterprises v. Miller, ...
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PRESIDENT AND DIRECTORS, ETC. v. Madden, Civ. No. K-77-1438.
...Blocher concerning whether the appellate review was or was not premature may be questioned by the opinion in Eastgate Associates v. Apper, 276 Md. 698, 350 A.2d 661 (1976). That latter issue is of no moment 24 The Revisor's Note was included in the 1974 Courts and Judicial Proceedings volum......
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Maryland-National Capital Park and Planning Com'n v. Crawford, MARYLAND-NATIONAL
...of appeal would still not confer appellate jurisdiction to review the later June 22nd order. See, e.g., Eastgate Associates v. Apper, 276 Md. 698, 701, 350 A.2d 661 (1976); Merlands Club, Inc. v. Messall, 238 Md. 359, 208 A.2d 687 18 To the extent that Wright is based upon the Fourth Circui......
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Lohman v. Lohman, 130
...483, 386 A.2d 766 (1978) and Dackman v. Dackman, 252 Md. 331, 250 A.2d 60 (1969), overruled on other grounds by Eastgate Assocs. v. Apper, 276 Md. 698, 350 A.2d 661 (1976), which permitted a claimant to recover alimony following the awarding of a foreign divorce Page 121 decree to her forme......
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Houghton v. County Com'rs of Kent County, 76
...Appeals." (Id., p. 13). The authority for this "perception" of the law by the bar and judges is said to be Eastgate Associates v. Apper, 276 Md. 698, 350 A.2d 661 (1976); Aronstamn v. Coffey, 259 Md. 47, 267 A.2d 741 (1970); and Felger v. Nichols, 30 Md.App. 278, 352 A.2d 330 (1976), cited ......