Martin G. Imbach, Inc. v. Deegan

• Citation: 117 A.2d 864,208 Md. 115
• Decision Date: 04 November 1955
• Docket Number: No. 51,51
• Parties: MARTIN G. IMBACH, Inc., v. Joseph C. DEEGAN, Sheriff of Baltimore City. Joseph C. DEEGAN, Sheriff of Baltimore City, v. MARTIN G. IMBACH, Inc.
• Court: Court of Appeals of Maryland

Page 115

208 Md. 115

117 A.2d 864

MARTIN G. IMBACH, Inc., v. Joseph C. DEEGAN, Sheriff of Baltimore City.

Joseph C. DEEGAN, Sheriff of Baltimore City, v. MARTIN G. IMBACH, Inc.

No. 51.

Court of Appeals of Maryland.

Nov. 4, 1955.

Donald N. Rothman and A. Frederick Taylor, Baltimore (Gordon, Feinblatt & Rothman, Baltimore, on the brief), for appellant.

Harrison L. Winter, Deputy Atty. Gen., and James H. Norris, Jr., Sp. Asst. Atty. Gen (C. Ferdinand Sybert, Atty. Gen., on the brief), for appellee.

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

BRUNE, Chief Judge.

This suit was brought by Martin G. Imbach, Inc. ('Imbach'), the appellant in this Court, against Joseph C. Deegan, the Sheriff of Baltimore City (the 'Sheriff'), appellee here, to recover poundage fees alleged to have been illegally collected by the Sheriff. The present appeal (No. 51, October Term, 1955) is from a judgment for costs for the defendant entered by direction of Chief Judge Niles to give effect to the ultimate ruling previously made by Judge Cullen, which sustained the defendant's demurrer to the plaintiff's amended declaration, without leave to amend.

The case first came before this Court as No. 171 at the October Term, 1954, on an appeal by Imbach, a cross-appeal by the Sheriff, and a motion by the Sheriff to dismiss Imbach's appeal on the ground that it was not taken within the time allowed for appeal. Both appeals and the motion were fully argued. It developed during the argument in this Court that no judgment for costs for the defendant had been entered in the trial court. Hence there was no final judgment of that court to support Imbach's appeal, and that appeal was therefore dismissed. Commonwealth of Pennsylvania v. Warren, 204 Md. 467, 105 A.2d 488; O'Keefe v. Scott, 198 Md. 310, 83 A.2d 860; Montgomery County Welfare Board v. Donnally, 195 Md. 442, 73 A.2d 505; Goodman v. Clark, 193 Md. 521, 69 A.2d 496; Penny v. Department of Maryland State Police, 186 Md. 10, 45 A.2d 741.

The Sheriff's cross-appeal in No. 171 likewise failed for want of a final judgment and was dismissed; and the ground upon which his motion to dismiss Imbach's appeal in No. 171 was based was also untenable for the same reason.

After the question of the lack of a final judgment had been raised the appellee Sheriff filed a petition in the Superior Court asking that the docket entries of December 30, 1954 and February 9, 1955 be corrected by adding a judgment for costs for the defendant. The appellant Imbach filed an answer assenting to a change in the February 9, 1955 entry. After a hearing the petition was denied by Chief Judge Niles, who directed, instead, that a judgment for the defendant for costs be entered on the date (June 6, 1955) upon which the petition was heard and denied. The judgment so entered merely gave effect to Judge Cullen's final ruling on the demurrer to the amended declaration. The present appeal by Imbach is from that judgment. By agreement between the parties the briefs and arguments submitted in No. 171 of the October Term, 1954, are resubmitted on this appeal without further briefs or argument; and on that basis the present appeal has been advanced for determination.

Although the questions raised by the Sheriff's cross-appeal and motion to dismiss do not now require decision, we think that some comment on the proceedings which gave rise to them is appropriate.

On December 30, 1954, the trial Judge sustained the defendant's demurrer to the plaintiff's amended declaration without leave to amend, and duly so advised counsel for both parties by a letter of that date. On January 3, 1955, one of the attorneys for the plaintiff (Mr. Taylor) called upon the trial Judge to ask the reasons for his ruling and to request that he change the ruling from one denying leave to amend to one granting such leave. The trial Judge stated that he would be so and that he would later file a summary of the reasons for his ruling on the demurrer. He filed a memorandum opinion on February 9, 1955, which omitted any grant of leave to the plaintiff to amend. Plaintiff's counsel then made a second visit to the Judge (on February 14th) and reminded him of the previous conversation, and the Judge thereupon amended his opinion by adding leave to amend. It was not until after this change had been made and filed that the Sheriff or his counsel was notified of any change, actual or proposed, in the ruling of December 30th. It is evident that both parties regarded the ruling of December 30th as a final judgment and believed that the thirty-day time limit for an appeal ran from that date. It is equally clear that if the plaintiff's request had been made by a written motion (as would certainly have been appropriate), a copy thereof would have been required to be served on opposing counsel. General Rules of Practice and Procedure, Pt. II, V, Service of Pleadings and Other Papers, Rules 1(a) and 1(c). The fact that the request was oral did not dispense with the need for notice as a matter of fairness as well as propriety.

We have no doubt that the omission of notice on the part of plaintiff's counsel was unthinking rather than deliberate and that the Judge's action in granting the plaintiff's request for a change in the ruling without any showing that the defendant's counsel had been notified of the request was also inadvertent. The change in the ruling was, however, substantial and clearly it should not have been made without notice to the defendant's counsel of record and an opportunity to object and be heard, if such counsel so desired.

The situation became somewhat further confused after the granting of leave to amend because counsel for the plaintiff, after studying the trial court's opinion which was filed on February 9th, reached the conclusion that any new amendment of the declaration would serve no useful purpose and thereupon filed a petition (of which the defendant's counsel were notified) seeking to have the docket entries 'corrected' by striking out the order of December 30, 1954 and by having it in practical effect restated nunc pro tunc as of February 9, 1955. ¹ The defendant answered and opposed the petition on the grounds (1) that the order of December 30th had become enrolled prior to February 9th and was beyond the revisory power of the court and (2) that the proceedings subsequent to December 30th were not binding on the defendant since he did not participate therein and had no knowledge or notice thereof. The court entered an order on February 28, 1955 in accordance with the plaintiff's petition. This was the order from which the appeal and cross-appeal were taken in No. 171 at the October Term, 1954, and those appeals have been dismissed because of the lack of a final judgment.

We now approach the merits of the controversy. Since the case was heard upon a demurrer to the amended declaration, we must turn to that declaration for a statement of the facts. The declaration shows that the Clerk of the Superior Court gave to the defendant, as the Sheriff of Baltimore City, for execution a writ of fieri facias issued in a named case in that court, and then alleged that 'the Defendant, and his Deputies did not execute the said writ, as the judgment upon which it was issued and all costs were paid upon the service of the writ, whereupon the Defendant made no levy, schedule, or return of goods levied upon, and for that in collecting costs, the said Defendant illegally demanded and collected, over the protest of the Plaintiff, poundage fees in the amount of $636.35, inasmuch as he had not earned them in accordance with the statute made and provided for such fees, and the said Defendant has refused to return the said sum of $636.35 illegally collected as poundage fees, although demand has been made therefore.' (Sic.)

Strictly, these are the only facts properly alleged. Of course, only well-pleaded facts, and not the pleader's conclusions of law, are admitted by the demurrer. In this case and largely because of the allegations as to what happened after the deputy 'served' the writ, the allegation that he did not 'execute' it seems to fall into the category of a conclusion of law. The rather scanty facts expressly stated in the declaration may be somewhat amplified by inferences from them. Thus the learned trial Judge stated in his memorandum opinion that 'It is clear that the presence of the sheriff ready to take possession and with the plaintiff's chattels within his power and control, was the coercing factor which satisfied the judgment of the Court.' The judgment referred to is, of course, that for the enforcement of which the writ was issued. It was a judgment of the Superior Court of Baltimore City which had been affirmed on appeal by this Court three days before the writ was issued. See Martin G. Imbach, Inc., v. Tate, 203 Md. 348, 100 A.2d 808. We do not regard it as pressing inferences too far to conclude--and we may add that statements and admissions in the briefs and oral arguments before us indicate that such conclusions are not in dispute--(1) that when the Sheriff's deputy went to Imbach's place of business there were on the premises chattels belonging to Imbach of a value at least equal to the full amount of the judgment (including interest and costs) and the full amount of the poundage fees demanded; (2) that such property was visible to the deputy; (3) that there was no obstacle to his taking actual, physical possession of such property; (4) that he threatened to take such actual possession, but at Imbach's request and because of the payments next referred to, did not do so; (5) that instead of making such actual seizure he received payment of (a) the full amount of the judgment (including interest and costs) for the enforcement of which the writ of fi. fa. was issued and (b) the full amount of the poundage fees to which the Sheriff would be entitled for execution of the writ; ² and (6) that Imbach...