Hillyard Const. Co. v. Lynch, 168

• Citation: 256 Md. 375,260 A.2d 316
• Decision Date: 07 January 1970
• Docket Number: No. 168,168
• Parties: The HILLYARD CONSTRUCTION COMPANY, Inc., et al. v. Charles E. LYNCH et al.
• Court: Court of Appeals of Maryland

Page 375

256 Md. 375

260 A.2d 316

The HILLYARD CONSTRUCTION COMPANY, Inc., et al. v. Charles E. LYNCH et al.

No. 168.

Court of Appeals of Maryland.

Jan. 7, 1970.

J. Mayer Willen, Baltimore, (Henry P. Walters, Pocomoke City, on the brief) for appellants.

Dale R. Cathell, Ocean City, (Sanford & Bolte and Lee W. Bolte, Berlin, on the brief) for appellees.

Before HAMMOND, C. J., and McWILLIAMS, FINAN, SINGLEY and DIGGES, JJ.

SINGLEY, Judge.

Charles E. Lynch and his wife, Lois H. Lynch, and Charles E. Lynch, Inc., brought suit in the Circuit Court for Worcester County for damages alleged to have resulted from the breach of two contracts for the construction of town houses in Ocean City. Joined as defendants were The Hillyard Construction Company, Inc.; Elvan H. Clayton and Roland G. Paddy, partners trading as The Hillyard Construction Company; and Elvan H. Clayton and Roland G. Paddy, individually. The principal office of the Hillyard corporation and the place of business of the partnership were in Baltimore County, where Clayton resided also. Only Paddy was alleged to be a resident of Worcester County.

The Hillyard Construction Company, Inc., and Elvan H. Clayton Moved to quash the writs of summons and dismiss the declaration on the ground that the principal office of the corporation was located in Baltimore County; that Clayton resided in Baltimore County; and that neither the corporation nor Clayton regularly engaged in business in Worcester County. From an order denying the motion to quash this appeal was taken.

The question presented is a narrow one, involving the interpretation of Maryland Code (1957, 1968 Repl.Vol.) Art, 50, § 5:

'In any action ex contractu in which all of the defendants are not residents of the same county, the plaintiff at his election may sue all said defendants in the county in which any one of the defendants resides or regularly does business. As used in this section, the term 'county' includes Baltimore City.'

The appellants argue that Article 50 is entitled 'Joint Obligations and Joint Tenancy'; that § 5 bears the heading 'Venue of Suits Against Joint Obligors', and call to our attention a footnote in this Court's opinion in Benson v. Mays, 245 Md. 632, 638, 227 A.2d 220, 224 (1967) which suggests, without passing on the question, that the reach of § 5 may be limited 'to joint monetary obligations or to single contracts on which more than one person is liable.' This should be read, however, in the light of Mangione v. Braverman, 234 Md. 357, 199 A.2d 225 (1964), where suit was brought in Baltimore City on an oral contract against four defendants, two of whom lived in Harford County, and two of whom lived in Baltimore County, the latter being regularly engaged in business in Baltimore City. This Court dismissed an attack on venue for procedural reasons, but characterized it as being without merit.

Art. 50, § 5 was repealed and re-enacted by Chap. 206 of the Laws of 1953, entitled:

'AN ACT to repeal and re-enact, with amendments, Section 6 (now Section 5) of Article 50 of the Annotated Code of Maryland (1951 Edition), title 'Joint Obligations and Joint Tenancy', sub-title 'Joint Obligations', making general provision for the place of suit in any action ex contractu in which all of the defendants are not residents of the same County.'

Prior to the 1953 repeal and re-enactment, § 6 (now § 5) had read:

'If the obligors in any bond, penal or single bill reside in different counties they may be sued in the counties in which they respectively reside, but will residing in the same county shall be sued in one action.'

It is the title of Chap. 206 which must be tested against the provisions of Maryland Constitution, Art. III, § 29, and not the article and section headings on which the appellants posit their argument, since these are the work of the codifier. See Everstine, Titles of Legislative Acts, 9 Md.L.Rev. 197, 236 (1948).

We have discussed the issue presented to make it clear that it is our belief that the General Assembly, in enacting Chap. 206 of the Laws of 1953, intended to permit an action on a contract on which two or more defendants are alleged to be obligated to be grought in the county where any one of the defendants resides or regularly does business.

If, in the course of the proceedings, it develops that Paddy, the only resident of Worcester County, is not jointly liable on the contracts the question of venue can be raised anew. On the state of the record before us, and a declaration alleging that Paddy and his fellow defendants were joint obligors, we think the motion to quash was properly denied.

We propose to dispose of the appeal, however, for a reason not raised by the appellees, as Maryland Rule 835 a 2 permits, Harkins v. August, 251 Md. 108, 246 A.2d 268 (1968). It was long been established that no appeal will lie from an order overruling a motion to quash a writ of summons, ¹ Gambrill v. Parker, 31 Md. 1, 4 (1869); 2 Poe, Pleading and Practice § 827 (5th Ed., 1925) at 803; 72 C.J.S. Process § 112 d (1951) at 1166; 2 Encyclopedia of Pleading and Practice, Appeals (1895), Note at 85, because it is interlocutory only, and not a final judgment. It is much like the dismissal of a motion to quash a writ of attachment, or of replevin or of an order overruling a demurrer, from none of which will an appeal lie. Mitchell v. Chesnut, 31 Md. 521, 527 (1869); Baldwin v. Wright, 3 Gill 241, 246 (1845); Welch v. Davis, 7 Gill 364 (1848); Reynolds v. Russler, 128 Md. 606, 98 A. 75 (1916); Code (1957, 1968 Repl.Vol.) Art. 5, § 1.

Our predecessors gave the reason for the rule in Boteler & Belt v. State, use...