Gittings v. City of Baltimore

• Decision Date: 31 October 1902
• Parties: GITTINGS v. MAYOR, ETC., OF CITY OF BALTIMORE.
• Court: Maryland Court of Appeals

54 A. 253

95 Md. 419

GITTINGS v. MAYOR, ETC., OF CITY OF BALTIMORE.

Court of Appeals of Maryland

October 31, 1902

On motion for reargument. Former decree of affirmance rescinded and cause remanded without affirmance or reversal, under Code Pub.Gen.Laws, art. 5, § 36.

For former opinion, see 52 A. 937.

PEARCE J.

A motion has been filed in this cause for reargument, or failing in this, that the decree passed herein may be modified, and that, in lieu of the affirmance of the decree passed by the court below, the cause may be remanded, under section 36, art. 5, of the Code of Public General Laws, to the end that the appellant may have leave to amend his bill of complaint by averring therein that the appeal tax court of Baltimore City did not give him any notice of its purpose to change or alter his assessment upon "Ashburton" for the year 1901, under the provisions of section 164a of the charter of Baltimore City. Laws 1900, p. 603, c. 347.

We have carefully considered this motion and the brief filed in support thereof, and we remain of the opinion that the bill cannot properly be regarded as denying that the required notice of the purpose of the appeal tax court to increase this assessment was given to the appellant, and in the present state of the record we should be compelled to adhere to the decree of affirmance heretofore passed. We stated in the opinion heretofore filed in this case that, if the failure to give such notice had been alleged in the bill, the demurrer must have been overruled, and the injunction granted. It is now alleged in the brief filed in support of the motion for modification of the decree that no such notice was in fact given, and that proof thereof can be made. If this be true, we think it equitable that an opportunity should be afforded to establish the fact; since, under an amended bill averring this fact, and sustained by proper proof, the appellant would be entitled to relief. Paine v. France, 26 Md. 46; Johnson and Wife v Robertson, 31 Md. 491.

We shall, therefore, as authorized by section 36 of article 5 of the Code of Public General Laws, rescind the decree of affirmance heretofore passed, and shall, without affirming or reversing the decree of the court below, order the cause to be remanded, to the end that the bill may be amended as indicated, and that such further proceedings may be had, and such testimony be taken, as shall be necessary for determining the...