Lange v. Board of Education of Cecil County, to Use and Benefit of International Business Machines Corp.

• Decision Date: 03 May 1944
• Docket Number: 10.
• Citation: 37 A.2d 317,183 Md. 255
• Parties: LANGE et al. v. BOARD OF EDUCATION OF CECIL COUNTY, to Use and Benefit of INTERNATIONAL BUSINESS MACHINES CORPORATION.
• Court: Maryland Court of Appeals

37 A.2d 317

183 Md. 255

LANGE et al. v. BOARD OF EDUCATION OF CECIL COUNTY, to Use and Benefit of INTERNATIONAL BUSINESS MACHINES CORPORATION.

No. 10.

Court of Appeals of Maryland

May 3, 1944

Appeal from Superior Court of Baltimore City; W. Conwell Smith Judge.

Action by the Board of Education of Cecil County, to the use and benefit of the International Business Machines Corporation against Philip Lange and another, trading as Lange Bros., and the Aetna Casualty & Surety Company, on a performance bond given by defendants Lange in connection with their contract for construction of a schoolhouse. Judgment for plaintiff and defendants appeal.

Affirmed.

Eugene Frederick, of Baltimore, for appellants.

Robert D. Bartlett, of Baltimore (J. Kemp Bartlett, Jr., and Bartlett, Poe & Claggett, all of Baltimore, on the brief, for appellee.

Before MARBURY, C.J., and DELAPLAINE, COLLINS, GRASON, MELVIN, and BAILEY, JJ.

BAILEY Judge.

This is the second appeal in this case. The first appeal was taken by the plaintiff, appellee in the present appeal, from a judgment for the defendants entered after the demurrer to the second amended declaration was sustained without leave to amend. This judgment was reversed and the case remanded. The opinion of this Court, by Chief Judge Sloan, is reported as Board of Education of Cecil County v. Lange in 32 A.2d 693. Thereafter the case was tried in the Superior Court of Baltimore City, by the Judge thereof, without a jury. From a judgment in favor of the plaintiff for $839.46, the defendants have appealed under Trial Rule 9(c) of the General Rules of Practice and Procedure, 1941.

The first question raised in the present appeal is one of practice. The Court declined to pass upon it in the former appeal, as it was not properly before the Court on appeal by the plaintiff. The first amended declaration contained two counts, the first count on a labor and service bond and the second count on the performance bond considered by this Court in the prior appeal. On November 3, 1941, demurrers to each count of the amended declaration were sustained, with leave to the plaintiff to file a second amended declaration within fifteen days. Upon petition of the plaintiff filed on April 21, 1942, the time for the filing of the second amended declaration was extended until April 30, 1942. Both the original and the first amended declarations had been filed by the Board of Education of Cecil County, Maryland, to the use and benefit of International Business Machines Corporation and to the use and benefit of such other persons having claims herein. On April 25, 1942, the plaintiff filed its second amended declaration, eliminating the words 'and to the use and benefit of such other persons having claims herein' and the first count of the first amended declaration. The allegations of the second amended declaration were, otherwise, exactly the same as those contained in the second count of the first amended declaration. On April 28, 1942, the defendants filed a motion me recipiatur to the second amended declaration and a motion for a judgment of non pros. Both motions were overruled.

The dedendants now contend that the motion ne recipiatur should have been granted for two reasons: First, because the second amended declaration was filed too late; and second, because it did not constitute an amendment, but was a mere refiling of a pleading to which a demurrer had already been sustained.

The general rule, as stated in Poe's Pleading and Practice (Tiffany's Edition), Vol. 2, § 360, is that 'if the defendant's demurrer to the declaration be sustained, he will be entitled to final judgment, unless the plaintiff, upon proper leave obtained, amends his declaration; in which event, the defendant will be required to proceed de novo, either by demurrer or plea to the amended declaration'. The same author also says, at sec. 362, that 'judgment of non pros. may be entered up against the plaintiff for his default in filing a declaration or any other pleading, according to the course of the court, when duly laid under rule to do so'. Under this authority the defendants could have moved for a judgment of non pros. at any time from November 18, 1941, until April 21, 1942, the period that the plaintiff was in default, but this they failed to do. The motion for judgment of non pros. was not made until after the filing of the second amended declaration and this was too late. It was within the discretion of the trial court to allow the filing of the second amended declaration even though the time originally allowed for the filing of the same had elapsed. The statute upon this subject is very liberal, allowing amendments, in cases of jury trial, at any time before the jury retire to make up their verdict, and in cases of demurrer and other trials before the court, at any time before judgment is entered. Art. 75, sec. 39, Code 1939; Gisriel v. Burrows, 72 Md. 366, 373, 20 A. 240; Scarlett v. Academy of Music, 43 Md. 203, 208. The case of Rutledge v. McAfee, 72 Md. 28, 18 A. 1103, relied upon by the appellants, applies the general rule laid down by Mr. Poe, in sec. 362, which we have quoted above, but it is not applicable to the present case. It held that a judgment of non pros. was sustainable on the failure of the plaintiff to file a new replication. But we can find no authority holding that the judgment must be entered against a plaintiff in default, in the absence of a seasonable motion by the defendant.

This brings us to the defendants' second contention. The defendants base this contention upon the case of Musher v. Perera, 162 Md. 44, 158 A. 14, 15. This was a case under the Speedy Judgment Act of Baltimore City. After the defendant had filed pleas supported by affidavit and a certificate of counsel, as required by the act, the plaintiff obtained leave to file an amended declaration.

The plaintiff then filed a declaration identical with that originally filed. The defendant then moved to dismiss the case on the ground that no amended declaration had been filed within the time allowed by the court. That motion was overruled, whereupon the defendant declined to plead to the so-called amended declaration. The plaintiff then moved for a judgment by default 'for want of plea', which was entered. On appeal the defendant contended that the socalled amended declaration was not in fact an amended declaration that merely refiling it could not change its character as an original declaration, and that, having pleaded to it once, he was not required to plead to it again. The Court sustained this contention and held that, as the defendant had filed proper pleas to the original declaration, he was not in default, and the court was without jurisdiction to enter the judgment by default. In the opinion it is stated that the 'word 'amendment' necessarily connotes a change of some kind, ordinarily for the better, but...