Frush v. Brooks, 111

• Citation: 104 A.2d 624,204 Md. 315
• Decision Date: 26 April 1954
• Docket Number: No. 111,111
• Parties: FRUSH v. BROOKS.
• Court: Court of Appeals of Maryland

Page 315

204 Md. 315

104 A.2d 624

FRUSH v. BROOKS.

No. 111.

Court of Appeals of Maryland.

April 26, 1954.

Franklin Somes Tyng, Cambridge, for appellant.

No brief and no appearance for appellee.

Before BRUNE, C. J., and DELAPLAINE, COLLINS, HENDERSON and HAMMOND, JJ.

HAMMOND, Judge.

The decision in this appeal depends on the meaning and effect of the summary judgment provisions of the General Rules of Practice and Procedure.

The appellee, plaintiff below, sold the appellant, defendant below, a house scow, and as part of the purchase price accepted her promissory note. Not only was the note not paid but an additional indebtedness accrued for wharfage. Appellee filed suit to recover the balance due. Filed with the declaration was a motion for summary judgment, with supporting affidavit and notice to the defendant to plead, as required by the rules. The appellant filed the two usual general issue pleas and a third plea: 'That she has a bona fide defense to the claims of the Plaintiff, * * *' and made oath in due form of law that each and every plea was true and that she was advised by counsel to file them. She prayed a jury trial. Her counsel at the time, who did not represent her on appeal, certified that he had advised her to file the pleas and make the affidavit. At this point the appellant filed a suggestion of removal and the case was sent from the Circuit Court for Dorchester County to the Circuit Court for Wicomico County. Some six months later, the appellee filed a second motion for summary judgment and it was granted by the court.

The appellant relies here on these propositions: (1) that under the rules, the plaintiff's affidavit was insufficient to sustain his motion for summary judgment, because it merely affirmed the existence of entries in his own books of account; (2) that the timely filing of pleas by the appellant, denying the whole of the plaintiff's claim, with an affidavit as to the truth of the pleas, was enough to prevent the granting of summary judgment; (3) that the failure of the appellee to give notice to the appellant at the time of the filing of the second motion for summary judgment, as required by the rules, foreclosed the entry of the judgment as a matter of law. In support of all of these propositions, the appellant urges that a summary judgment can be entered only when: '* * * there is no genuine dispute as to any material fact * * *' and says that here there is such a dispute. Further, she says that, having prayed a jury trial, she is entitled to require the appellee to prove his claim before the jury and to have the opportunity herself to controvert plaintiff's evidence. We find no merit in any of these contentions.

Summary Judgment Rule 4(a) requires that: 'The judgment sought shall be rendered forthwith if the pleadings, depositions, and admissions on file, together with the affidavits, if any, show 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.' Rule 1(b) provides that the motion must be supported by affidavit when filed with the pleading asserting the claim. Rule 2 sets forth that 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.' It further provides that: '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 appellee filed with his declaration a statement of account showing the balance due on the promissory note, the wharfage for the periods named, at stated rates, interest on balances, credits for payments, and finally a balance presently due. A copy of the promissory note was attached. The affidavit affirmed that the appellee: '* * * keeps regular books of account of his business and he is familiar with said books and that the annexed statement is a true and correct copy of the account of the said Leona Frush, on the books of Claude R. Brooks, * * * that there is justly due and owing by the said Defendant to the Plaintiff on the annexed statement the sum of Eight Hundred eighty-seven dollars ($887), without deductions or offset and over and above all discounts, and that this affiant has personal knowledge of the matters and facts therein stated.' We find that the affidavit gratified the provisions of the summary judgment rules. Clearly, the matters and facts therein averred would be admissible in evidence. Article 35, Section 68, of the Code (1951) provides that any writing or record, whether in the form of an entry in a book or otherwise made as a memorandum or record of any act or transaction, shall be admissible in evidence or prove such act or transaction, if made in the regular course of any business, and the mere lack of personal knowledge by the entrant or maker may be shown only to affect the weight but not the admissibility thereof. Under this provision, the Legislature has created a broad exception to the hearsay rule. Lee v. Housing Authority of Baltimore City, Md., 101 A.2d 832; and Bethlehem-Sparrows Point Shipyard v. Scherpenisse, 187 Md. 375, 50 A.2d 256. In the instant case the affiant swore not only that the entries were made in the regular course of business, but that he had personal knowledge of their accuracy, as well as that the appellant in fact was indebted to him in the amount shown. The affidavit was sufficient to support the motion for summary judgment. Molesworth v. Schmidt, 196 Md. 15, 75 A.2d 100; Fletcher v. Flournoy, 198 Md. 53, 81 A.2d 232.

There is abundant support for a holding that a mere general denial of a plaintiff's claim is not enough, as claimed by appellant, to show that there is a genuine dispute as to a material fact. The Maryland summary judgment rules, and especially the requirements of supporting or opposing affidavits, were taken from the Federal Rules of Practice and Procedure, Rule 56, 28 U.S.C.A., so that interpretations of the Federal Rules are especially persuasive as to the meaning of the Maryland rules. U. O. Colson Co. v. Goff, Md., 102 A.2d 548. The Federal cases hold that: '* * * mere formal denials or general allegations which do not show the facts in detail and with precision are insufficient to prevent the award of summary judgment.' Engl v. Aetna Life Ins. Co., 2 Cir., 139 F.2d 469, 473. See also Dewey v. Clark, 86 U.S.App.D.C. 137, 180 F.2d 766, 772; Piantadosi v. Loew's, Inc., 9 Cir., 137 F.2d 534; and Schreffler v. Bowles, 10 Cir., 153 F.2d 1. That the Maryland rules were intended to have the same meaning as their Federal prototype is indicated by the Reporter's notes found on page 2114 of the 1947 Supplement to the Code. There it is said: 'Under the speedy...