Fitzgerald v. Somerset County Sanitary Commission

• Citation: 231 Md. 242,189 A.2d 601
• Decision Date: 03 April 1963
• Docket Number: No. 267,267
• Parties: Ruby F. FITZGERALD et al. v. SOMERSET COUNTY SANITARY COMMISSION.
• Court: Court of Appeals of Maryland

Page 242

231 Md. 242

189 A.2d 601

Ruby F. FITZGERALD et al. v. SOMERSET COUNTY SANITARY COMMISSION.

No. 267.

Court of Appeals of Maryland.

April 3, 1963.

Henry F. Lankford, Snow Hill, for appellants.

Alexander G. Jones, Princess Anne, for appellee.

Before BRUNE, C. J., and HAMMOND, PRESCOTT, MARBURY and SYBERT, JJ.

HAMMOND, Judge.

The appellant, Ruby F. Fitzgerald, continuing her fight to prevent the Somerset County Sanitary Commission from acquiring an easement over and under her land for a sewer line, contends in this appeal that the trial court erred (1) in its order of publication in shortening the usual time for pleading initially to the petition for condemnation, and (2) in overruling her contention the statute proceeded under is unconstitutional because (a) it allows an award to be paid to the clerk (which, it is claimed, is not payment or tender to the property owner as Art. III, Sec. 40, of the Maryland Constitution requires) and (b) its title was defective.

The Sanitary Commission, acting under the authority of Ch. 644 of the Laws of 1961, which repealed and reenacted with amendments Secs. 645 to 673 of Art. 43 of the Code (1957 Ed.) ('Sanitary Districts'), determined to acquire by eminent domain an easement in a lot in which Ruby Fitzgerald had a life estate as part of the construction of a sewerage project in the Princess Anne Sub-District of Somerset County. A petition seeking condemnation of the easement under the provisions of Code (1957), Art. 33A and the applicable Maryland Rules was filed. The deputy sheriff twice made unsuccessful efforts to serve a summons on Mrs. Fitzgerald and then filed an affidavit that on both occasions reasonable and bona fide efforts to effect personal service had failed, that he believed Mrs. Fitzgerald was home both times but deliberately refused to answer the door, and that both her son and her lawyer had informed him she 'would not allow us to serve her with process and that she would not permit us to enter her residence.' The Commission then was granted leave by the court to proceed against Mrs. Fitzgerald as though she were a non-resident, under Maryland Rule 104 h, and to acquire jurisdiction over her in the action in rem by constructive service through publication. The Commission petitioned the court to provide in the order of publication which was to be published on July 5, July 12, July 19 and July 26, that Mrs. Fitzgerald be required to file her initial pleading to the petition of condemnation on or before August 1. The court so ordered on the allegations that numerous other easements had been acquired from adjacent owners and delay in acquisition of the Fitzgerald easement would cause unnecessary inconvenience and expense to taxpayers and owners of the areas to be serviced by the sewerage project.

Rule 104 h provides that after two non ests and proof by affidavit of reasonable efforts to effect service, a resident defendant may be served by giving notice by publication. Rule 105 d 1 provides that the order of publication 'shall be published at least once a week in each of four successive weeks, the last such publication to be made not less than thirty days before the date fixed in the order for the filing of the defendant's initial pleading.'

The appellant argues that the thirty-day period between the date of the last publishing and the filing of the initial pleading is ineluctable, despite Rule 309 b which says that, 'For good cause shown the court may at any time by order shorten or extend the time allowed for filing or serving any pleading, notice or other paper.' Mrs. Fitzgerald claims that this power in the court does not cover the time within which one given notice by publication must initially plead. We are unable to perceive any good reason why it does not. Certainly in literal terms it does. Notice by publication is a recognized, proper and permissible mode of conferring upon a court power to pass judgment on property and property rights which bind the owner when the subject matter of suit is within its jurisdiction and the owner is beyond reach of summons. The presumption of notice, resulting from the due publication of the order of publication, confers upon the court power and right to act upon the subject matter of the suit, that subject matter being itself within the jurisdiction of the court. Dorsey v. Dorsey, 30 Md. 522, 534-535; Dorsey v. Thompson., 37 Md. 25, 43. When the order of publication before us had been duly published for the fourth time, the full power of the court to proceed with the condemnation and ultimately to bind the owner by a final judgment was established, and its order shortening the time to plead, as part of the procedure of the case, became effective.

The appellant alleges no actual prejudice from the order. Good cause for the shortening was shown, and the presumption that the publication had notified the defendant of the action was confirmed when, on July 19, Mrs. Fitzgerald filed a motion to quash the order of publication. We find no error in the challenged shortening of the time to plead.

Code (1962 Supp.), Art. 43, Sec. 650(b)(8), empowers the Sanitary Commission to acquire property by eminent domain and provides that '[a]t any time after ten days after the return and recordation of the verdict or award in any condemnation proceedings, the district may enter and take possession of the property so condemned, upon first paying to the clerk of the court the amount of said award and all costs taxed to that date, notwithstanding any appeal or further proceedings upon the part of the defendant.' The appellant says there is nothing in the statute to require the clerk to pay the award received by him to the property owner and, therefore, the act is unconstitutional in failing to comply with the specification of Art. III, Sec. 40, of the Constitution of Maryland, that no law shall authorize private property to be taken for public use without compensation 'being first paid or...