McCormick v. St. Francis de Sales Church

• Decision Date: 20 March 1959
• Docket Number: No. 178,178
• Citation: 149 A.2d 768,219 Md. 422
• Parties: Mary Jean Graham McCORMICK, etc. v. ST. FRANCIS DE SALES CHURCH, etc., et al.
• Court: Maryland Court of Appeals

Page 422

219 Md. 422

149 A.2d 768

Mary Jean Graham McCORMICK, etc. v. ST. FRANCIS DE SALES CHURCH, etc., et al.

No. 178.

Court of Appeals of Maryland.

March 20, 1959.

John W. T. Webb, Salisbury (Webb & Travers, Salisbury, on the brief), for appellant.

Richard E. Cullen and Merton F. Filkins, Salisbury (W. Edgar Porter, and Porter & Cullen, Salisbury, on the brief), for appellees.

Before HENDERSON, HAMMOND, and PRESCOTT, JJ., and J. DUDLEY DIGGES, Special Judge.

HENDERSON, Judge.

This appeal is from an order granting motions ne recipiatur and to strike from the record a declaration filed by the appellant. Suit had been filed against St. Francis de Sales Church, a Maryland religious corporation, Monsignor Stout, pastor of the congregation of the Roman Catholic Church at Salisbury known as St. Francis de Sales Church, and two named sisters of the Roman Catholic order of Sisters of Mercy, in tort, for the loss of an eye suffered by the equitable plaintiff while attending the parochial school of the Church, allegedly by reason of the negligence of the sisters who were instructors at the school. In a second count of the declaration, the appellant sued Zurich Insurance Company, which allegedly had a contract of liability insurance covering the Church, but which had denied coverage of anyone, except Monsignor Stout personally, under the terms of the contract.

The various defendants filed motions to this declaration. The Church, Monsignor Stout, and Zurich filed a joint motion, seeking to quash service as to Zurich (1) because the suit was premature as to it, and (2) because Zurich did not supply coverage, and further jointly praying that the declaration be not received and stricken, as to the Church and Monsignor Stout, (1) because both were subject to a superior ecclesiastical authority, the Bishop of Wilmington, Delaware (and therefore not responsible), and (2) because they were both charitable institutions without liability insurance and hence immune from liability. The sisters, appearing specially, filed a separate motion to quash service or amend the sheriff's return, and that the declaration be not received and be stricken as to them (1) because of improper service, (2) because only their Order was legally responsible for their conduct, and (3) because they had charitable immunity by reason of their vows of poverty. Testimony was taken at a hearing on these motions. The trial court found that the sisters had been improperly summoned and granted their motion on this ground. He then granted the other motions and ordered the declaration stricken in its entirety.

The appellees filed a motion to dismiss the appeal on the ground that the order granting the motion ne recipiatur is not a final order. We reserved ruling on that motion, but now hold that the contention is without merit. The effect of the court's ruling was to put the plaintiff out of court and deny her the means of further prosecuting her case against the moving parties. This is the accepted test in determining finality. While we have found no cases directly in point, we find support for this view in Hunt v. Tague, 205 Md. 369, 373, 109 A.2d 80; Northwestern Nat. Ins. Co. v. Samuel R. Rosoff, Ltd., 195 Md. 421, 427, 73 A.2d 461; Crawford v. Richards, 193 Md. 236, 243, 66 A.2d 483; and Allen v. Glenn L. Martin Co., 188 Md. 290, 295, 52 A.2d 605.

We think the procedure followed in the instant case was erroneous. The appellees rely in part upon Maryland Rule 323, but the preliminary objections therein set out, that may be made by motion, do not cover all of the matters sought to be raised by the motions filed. Considering first the motions filed by Zurich, the Church, and Monsignor Stout, there was no basis for a motion to quash service of the insurer. The question whether the second count of the declaration as to Zurich was premature is not one of the defenses which may be raised by preliminary objection under Rule 323, nor was misjoinder the proper subject of a dilatory plea or motion to quash, upon which the defenses in the Rule seem largely based. Cf. 1 Poe Pleading and Practice (Tiffany's Ed.) § 592 et seq.; Bricklayers', Masons' & Plasterers' International Union of America v. Seymour Ruff & Sons, 160 Md. 483, 491, 154 A. 52, 83 A.L.R. 448. Likewise, the question as to whether the alleged liability coverage existed in fact was not a matter which could be raised by way of preliminary objection under the Rule or under prior procedure. In short, so much of the motion as related to Zurich sought to attack the sufficiency of the declaration, which should have been done by demurrer, or to allege facts in denial of the declaration, which should be by special plea in bar.

Similarly, the objections raised by Monsignor Stout and the Church sought to introduce new facts or to traverse allegations of the declaration. The appellees contend that this procedure is within the purview of Rule 322, which deals with motions ne recipiatur and to strike. Certainly under the former Maryland practice the use of the motion ne recipiatur had a very limited scope. See 1 Poe, supra, § 668; Ugast v. LaFontaine, 189 Md. 227, 230, 55 A.2d 705; Woodcock v. Dennis, 175 Md. 9, 14, 199 A. 845. And a motion to strike has been held to be improper in most instances when used to challenge the sufficiency of a declaration. For a clear statement of the prevailing rule, see Clark, Code Pleading, 2d Ed., p. 552. See also O'Brien v. M. & P. Theatres Corporation, 72 R.I. 289, 50 A.2d 781, 783, 171 A.L.R. 1081. The fact that the Rule states that the motions ne recipiatur and to strike may be used, individually, in the alternative, or in combination 'for any purpose,' if intended to extend their former scope at all, would not seem to reach so far as to permit them to serve the office of a demurrer, plea, or motion for summary judgment for the reasons here asserted by appellees.

As to the motion of the two sisters, it was shown that the sheriff had not summoned them personally, but had left the summons with Monsignor Stout at his request. The validity of the service was a proper inquiry under the motion. Rule 323a(5). Cf. Bricklayers', Masons' & Plasterers' International Union of America v. Seymour Ruff & Sons, supra. But the other defenses raised by that portion of the motion which sought to strike the declaration clearly went to the merits, and were in the nature of special pleas, which were improperly joined in the motion to quash. In Glenn v. Williams, 60 Md. 93, 124, it was said that a plea in abatement cannot be joined with a plea in bar, and if such is done the latter will take precedence. See also Cruzen v. McKaig, 57 Md. 454, 459. The trial court did not pass on the validity vel non of these defenses, and we express no opinion thereon. Rule 323 contemplates that no pleading (including a motion) shall be filed before a motion under that Rule. We have held that even if it be shown that a person was not properly summoned, such right may be voluntarily waived, and that upon the filing of a general issue plea, no further action is necessary in reference to a writ of summons. Harvey v. Slacum, 181 Md. 206, 210, 211, 29 A.2d 276. For these reasons, the appellant in the instant case objected to any evidence relating to improper service, in view of the defenses asserted on the merits, by counsel for the sisters, on the ground that there had been a general appearance.

Maryland Rule 124c provides: 'Special appearances are abolished. The filing of a motion raising a preliminary objection shall be treated as an appearance for the limited purpose for which the motion is filed.' The Committee note indicates that 'This Rule abolishes the necessity of special appearances and puts the emphasis on the nature of the defense asserted rather than the method by which it is asserted.' The rule was referred to in Naylor v. Naylor, Md., 133 A.2d 74, and Naylor v. Naylor, 217 Md. 615, 622, 143 A.2d 604, but we found it unnecessary to construe it. In Keen v. Keen, 191 Md. 31, 41, 60 A.2d 200, 205, we recognized that a special appearance may be filed for the purpose of questioning the jurisdiction of the court, or if it be desired to quash summons or other proceedings, but we said: 'if an appearance, no matter how characterized, is in effect a general appearance, it will have the result of binding the party appearing in subsequent proceedings in this case.' In the instant case the assertion of defenses on the merits, in the motion to strike the declaration, was an invocation of the jurisdiction of the court, even though, procedurally, it was improperly coupled with the motion to quash. We think the filing...