Ginnavan v. Silverstone

• Decision Date: 02 May 1967
• Docket Number: No. 330,330
• Citation: 246 Md. 500,229 A.2d 124
• Parties: George H. GINNAVAN, Sr. v. F. B. SILVERSTONE.
• Court: Maryland Court of Appeals

Page 500

246 Md. 500

229 A.2d 124

George H. GINNAVAN, Sr. v. F. B. SILVERSTONE.

No. 330.

Court of Appeals of Maryland.

May 2, 1967.

Peter B. Turney, Baltimore, for appellant.

No appearance of brief for appellee.

Before HAMMOND, C. J., and HORNEY, OPPENHEIMER, BARNES and FINAN, JJ.

OPPENHEIMER, Judge.

This is an appeal by the committee of an incompetent from the denial of his motion to set aside a decree foreclosing the incompetent's right of redemption in property purchased by the appellee at a tax sale. The decree of foreclosure was entered pro confesso, no answer, plea or demurrer having been interposed on behalf of the incompetent, and no order having been passed requiring the incompetent's legal guardian or committee to appear, answer and defend for the incompetent.

The following facts are apparent on the face of the record made below. The appellee, F. B. Silverstone, filed a bill of complaint in equity in the Circuit Court for Baltimore County, alleging that she had purchased a plot of land formerly owned by George H. Ginnavan, Sr., at a public sale for non-payment of taxes. The bill prayed a decree foreclosing all rights of redemption in the lot. Service was made by publication. Counsel for Ginnavan (who was also Ginnavan's committee) filed a motion raising preliminary objections, contending that process and service should be quashed on the grounds that Ginnavan had previously been adjudicated an incompetent by the Circuit Court for Baltimore County and that process and service were not in compliance with the rules applicable to incompetents. The record does not show any disposition of this motion.

Counsel for the appellee filed an amended complaint on January 14, 1965, and a subpoena was issued under it commanding the committee to make answer or defense within 15 days of the February return day. The complaint stated that it had come to the appellee's attention that Ginnavan was an incompetent and that Peter B. Turney had been appointed his committee. The amended complaint stated further that it was the intent of the appellee to make the committee a party defendant and that allegations of the original complaint, where appropriate, were made applicable to the committee. The bill prayed a foreclosure of all rights of redemption, a vesting of all rights in the property in the appellee and that a subpoena be issued commanding the committee to appear.

The record indicates that an equity summons, requiring answer or defense within 15 days of the February return day, 1965, and a copy of the amended complaint, were duly served on the committee. There is nothing in the record to indicate service of this summons on Ginnavan. However, a summons was served on Ginnavan on March 30, 1965, ordering answer or other defense within 15 days of the April, 1965, return day. Typed across the face of this summons was the notation 'also served competent party' but the record contains no certificate or other proof of service on the committee. On April 22, 1965, a decree of foreclosure was entered in the Circuit Court for Baltimore County, the decree noting that no answer, plea or demurrer had been interposed by Ginnavan or the committee.

On April 29, 1965, seven days after the entry of the decree, the committee filed a motion to set it aside based on lack of jurisdiction and other grounds. The grounds urged in support of the alleged lack of jurisdiction were that no order requiring the committee to answer for the incompetent had ever been entered as required by law, that a decree pro confesso cannot be entered against a person under a disability, that no final decree could be rendered until an answer was filed on order of court, and that the committee was given insufficient notice of the return day. In his motion, the committee also alleged that the incompetent was not in default and had a substantial and valid defense to the amended bill of complaint, in that the published advertisement of the tax sale was fatally defective.

While the record contains no transcript of the proceedings at the hearing on the motion, it does contain the memorandum opinion of Judge Raine, dated June 22, 1966, denying the motion to set aside the decree. The opinion states that personal service was had on both the incompetent and his committee, (although, as has been noted, the committee was not served with the second summons) ordering them to answer or defend within 15 days after the April return day but that 'for some unexplained reason no answer was filed on behalf of the incompetent.' The opinion states further that counsel for the appellee indicated a willingness to allow the property to be redeemed but that the appellant pressed his contentions of a lack of jurisdiction. After holding the case sub curia to afford an opportunity for redemption, which was not offered, the court dismissed the motion to set aside the decree, stating that the decree was valid and that, as the appellant was unwilling to redeem the property, no useful purpose would be served by setting aside the decree. The court rested its decision on Code (1957), Article 81, Sec. 113, which states that if a decree of foreclosure is set aside for lack of jurisdiction, the amount required to redeem the property is the amount required by the provisions of that subtitle. This appeal from the denial of the motion was taken on behalf of the incompetent by his committee and counsel.

We are constrained to differ with the learned Chancellor in his construction of the applicable Code provisions dealing with proceedings to foreclose the right to redeem property purchased at a tax sale. The fundamental error in the decision, however, is the failure to recognize the invalidity of the decree.

In Matter of Easton, Incompetent, 214 Md. 176, 133 A.2d 441 (1957), Judge Prescott (later Chief Judge), for the Court, went deeply into the history of the law concerning persons non compos mentis and their property. He pointed out that, subject to constitutional limitations, 'The custody of the person and property of those non compos mentis has been so generally recognized and accepted as a legislative responsibility, both in this Country and in England, that it is not susceptible to serious challenge.' 214 Md. at 183, 133 A.2d at 445. The Maryland Rules of Procedure within their authorized scope, are legislative in nature. Maryland Constitution. Article IV, Sec. 18A; Code (1957) Article 26, Sec. 25; Hill v. State, 218 Md. 120, 127, 145 A.2d 445 (1958). Maryland Rule 205 e. 1. (the Rule) as then in effect provided as follows:

'e. Defendant Under Disability-Guardian-Committee.

'1. Guardian or Committee to Answer.

Upon return of process as served, or upon proof of due publication of the order of publication as against a nonresident defendant, the court shall, in the case of a person under disability, on application of the plaintiff or of any other party concerned or on its own motion, by order require the legal guardian or committee of the person under disability (if there be such guardian or committee within the jurisdiction of the court) to appear, answer and defend for such party.'

The source of the Rule was a statute previously in effect. Walker v. Wyse, 188 Md. 461, 470, 52 A.2d 918 (1947), and authorities therein cited.

The Rule expressly provides that upon return of process as served 'the court shall, in the case of a person under disability' whether on application of an interested party or on its own motion, 'by order require the legal guardian or committee of the person under disability * * * to appear, answer and defend for such party.' (Emphasis supplied). Ordinarily, the word 'shall' is mandatory and it is presumed that the word is used in that meaning unless the context indicates otherwise. Resnick v. Board of Elections, 244 Md. 55, 62-63, 222 A.2d 385 (1966); Maryland Medical Service, Inc. v. Carver, 238 Md. 466, 478-479, 209 A.2d 582 (1965); and cases therein cited.

In this case, the board policy of the law in respect of the protection of persons under a disability emphasizes the presumption that the direction of the Rule is mandatory. See Covey v. Town of Somers, 351...