Fletcher v. Flournoy

• Decision Date: 23 May 1951
• Docket Number: Nos. 157,158,s. 157
• Parties: FLETCHER v. FLOURNOY et al.
• Court: Maryland Court of Appeals

Page 53

198 Md. 53

81 A.2d 232

FLETCHER v. FLOURNOY et al.

Nos. 157, 158.

Court of Appeals of Maryland.

May 23, 1951.

Edmond C. Fletcher, in pro. per.

Charles E. Hogg, Ellicott City (John L. Clark, Ellicott City and Charles W. Prettyman, Rockville, on the brief), for appellees.

Before MARBURY, C. J., and DELAPLAINE, COLLINS, GRASON, HENDERSON and MARKELL, JJ.

MARKELL, Judge.

These are appeals from summary judgments, and orders refusing to strike out the summary judgments, for the defendants in two ejectment cases. In both cases the plaintiff is the same, and except the defendants, dates and properties, the facts are substantially identical. An opinion in No. 157 will therefore serve for both cases.

The declaration, filed September 27, 1950, alleges that 'on November 25, 1936 and at all times thereafter' plaintiff was and is now 'the owner in fee and entitled to the possession of' described parcels of land in Montgomery County; on October 4, 1940 defendant wrongfully entered, to the exclusion of plaintiff, and ever since has wrongfully withheld and now wrongfully withholds possession. Judgment is prayed for possession and damages. On October 10th defendant pleaded that in a certain cause, No. 8023, Equity, in the same court, plaintiff 'claimed the same right of possession of the premises which is the subject of the instant cause', and the court on June 8, 1937, ordered plaintiff 'to vacate said premises and deliver possession of the same by virtue of a writ in the nature of habere facias possessionem to the Home Owners Loan Corporation', which order and writ was executed on June 15, 1937; 'the controversy sought to be raised herewith was then fully determined by the court adversely to * * * plaintiff * * * ;' defendant occupies the premises 'through and under a grant in fee simple from * * * Home Owners Loan Corporation'.

On October 11th defendant filed a motion 'to enter summary judgment in his favor as to all the claim of the plaintiff * * *, upon the ground that there is no genuine dispute as to any material fact with respect to the prior decision of this court and that he is entitled to said judgment as a matter of law.' [Italics supplied.] With the exception of the italicized words, the words quoted are those of Rule 1(a) of the Summary Judgment rules. One of plaintiff's contentions here and in the lower court is that the motion, as narrowed by the italicized words, is not authorized by the rules. Manifestly the italicized words do narrow the words of the rule. How or why a litigant, not under compulsion of facts, should so depart from the simple words of a simple rule passes understanding. If the lower court for this reason had denied a summary judgment, its action would not have been erroneous. The question now presented is whether the action of the court in granting summary judgment constitutes reversible error, even if it appears, in accordance with the rules, that in fact there is no genuine dispute as to any material fact. We think not. A motion for a summary judgment, like a supporting or opposing affidavit, is not a pleading (Molesworth v. Schmidt, Md., 75 A.2d 100, 102); it is only a motion. That a motion is not always an indispensable prerequisite to obtaining a summary judgment is illustrated by the provision in Rule 4(a), 'Where appropriate, the court on the hearing may render judgment for the opposing party even though he has not filed a cross-motion for summary judgment.' In the Federal Rules of Civil Procedure, Rule 56 (a), 28 U.S.C.A. authorizing a motion for summary judgment, does not specify any 'ground' for the motion, but Rule 56(c), like Maryland Rule 4(a), makes it the ground for judgment, i. e. for granting the motion, 'that there is no genuine dispute as to any material fact and that the moving party is entitled to a judgment as a matter of law.' The Maryland Summary Judgment rules are 'based on Rule 56 of the Federal Rules of Civil Procedure, with certain changes to adapt it to the existing Maryland procedural system.' Reporter's Explanatory Notes, Code, 1947 Supp., p. 2113. In general, the effect of the change in Maryland was not to restrict or narrow but to broaden, the federal rule. Moreover the Summary Judgment rules, unlike the former Speedy Judgment Acts, do not preclude amendments in such proceedings. Cf., Rules 2 and 4(e).

Rules 1(b) and 2 provide, 'Rule 1(b). The motion must be supported by affidavit when filed with the pleading assertting the claim or before the defending party has pleaded in answer to it; otherwise the motion may be made with or without supporting affidavits. The adverse party may file opposing affidavits before the day of the hearing.

'Rule 2. Supporting and opposing affidavits shall be made on personal knowledge, shall set forth such facts as would be admissible in evidence, and shall show affirmatively that the affiant is competent to testify to the matters stated therein. Sworn, or certified or photostatic copies of all material papers or parts thereof referred to in an affidavit shall be attached thereto or filed therewith or their absence satisfactorily explained. The court may permit affidavits to be supplemented or opposed by depositions or by further affidavits.' In the instant case the motion was filed after, not before, defendant's plea. Therefore, a supporting affidavit was not required by the rule, if not required by the nature of the case. Defendant filed an affidavit, made by himself, 'to the best of his knowledge, information and belief'. As such an affidavit is clearly not in accord with Rule 2, it must be disregarded. State of Washington v. Maricopa County, 9 Cir., 143 F.2d 871, 873. The fact that such a loose form of affidavit is widely used in Maryland only emphasizes the fact that Rule 2 requires more. Indeed, although Chancellor Bland in Coale v. Chase, 1 Bl. 136, said that in Maryland there had been, as far back as his observation extended, a very great neglect of all regularity in the form of affidavits (Triebert v. Burgess, 11 Md. 452, 459-461), this court in Fowble v. Kemp., 92 Md. 630, 639-641, 48 A. 379, held that affidavits to a billfor injunction should be made on personal knowledge.

OnOctober 16th plaintiff filed a replication, by which he, 'as to defendant's plea, denies that the alleged Home Owners Loan Corporation, as mentioned in said plea, was, on June 8, 1937, June 15, 1937, or any other time, or is now, a body corporate either Federal or State and denies that such entity, by reason of its non-existence as a body corporate, had the lawful right to acquire the title to or possession of land in the State of Maryland, nor to any relief or standing in the Courts of Maryland.' The summary judgment was granted on December 14th. When the judgment was granted, the pleadings presented the declaration, the plea and the replication. A plea of res adjudicata need not set out the prior judgment or record. Code, art. 75, sec. 28, subsec. (54); Giessman v. Com'rs of Garrett County, 185 Md. 350, 361, 44 A.2d 862. Such a plea may lead to issues of law (e. g., a replication of nul tiel record, to be decided by the court, by inspection and examination of the record, Poe on Pleading, § 624) or issues of fact, on which parol evidence is admissible, or both. In ejectment a plea which set up a judgment in a prior 'action of ejectment to recover the same land' was held bad on demurrer (Brooke v. Gregg, 89 Md. 234, 237-238, 43 A. 38, 39), because two actions to recover the same land are not necessarily claims 'on the same cause of action'. Whether the plea in the instant case would be good on demurrer is a question not free from doubt. The declaration claims ownership in fee simple; the plea says in the prior case plaintiff 'claimed the same right of possession', and the controversy now raised was then fully determined. We think these allegations negative expiration of leaseholds or other limited estates or interests or creation of new or enlargement of old interests since the prior judgment.

If the plea is a good plea (as we hold it is), then the facts alleged in it stand, on motion for summary judgment, unchallenged except by the replication and by an affidavit filed by plaintiff before the judgment was granted. The affidavit is not printed as such, but is set out, apparently in full, in Judge Boylan's opinion. In his affidavit plaintiff alleges that 'there are several genuine disputes as to several material facts as shown by the pleadings and admissions on file, viz., a. Whether the Home Owners Loan Corporation was an existing body corporate on March 14, 1934; b. Whether the mortgage of Sue S. Poston and husband to the alleged Home Owners Loan Corporation dated March 14, 1934, is void or valid; c. Whether the assignment of the alleged mortgage by the Home Owners Loan Corporation is void or valid; d. Whether the alleged foreclosure proceedings No. 8023 Equity in the Circuit Court for Montgomery County are void for want of jurisdiction; e. Whether the deed of Sue S. Poston, widow, dated November 25, 1936, conveyed to Edmond S. Fletcher the lands involved in this suit; f. Whether the plaintiff had the legal title to such premises at the time of the institution of this action; e. Whether the defendant wrongfully entered into possession of said property and exercised acts of ownership since October 4, 1940, without right.' These allegations set forth no 'such facts as would be admissible in evidence', and do not show 'that the affiant is competent to testify to the matters stated therein'. They state only legal or argumentative conclusions. State of Washington v. Maricopa County, supra. All these seven 'disputes as to facts' seem to be conclusions from the allegation in the replication that Home Owners Loan Corporation was never validly incorporated. Some of these conclusions (e. g. as to jurisdiction of the court in the prior case) conceivably might be drawn from other facts, but no such facts as...