McQuaid v. United Wholesale Aluminum Supply Co., Inc.

• Decision Date: 07 June 1976
• Docket Number: No. 952,952
• Citation: 31 Md.App. 580,358 A.2d 922
• Parties: Phillip T. McQUAID v. UNITED WHOLESALE ALUMINUM SUPPLY CO., INC., et al.
• Court: Court of Special Appeals of Maryland

Page 580

31 Md.App. 580

358 A.2d 922

Phillip T. McQUAID v. UNITED WHOLESALE ALUMINUM SUPPLY CO., INC., et al.

No. 952.

Court of Special Appeals of Maryland.

June 7, 1976.

Certiorari Denied July 12, 1976.

Harry Goldman, Jr., Baltimore, for appellant.

Hyman Ginsberg, Baltimore, with whom were Ginsberg & Ginsberg, Baltimore, on the brief, for appellees.

Argued before ORTH, C. J., and MORTON and THOMPSON, JJ.

ORTH, Chief Judge.

We hold in this case that a judgment of non pros rendered against a party asserting a claim at law because of his failure to comply with the requirements as to time allowed for pleading is not a bar to the filing of another suit based on the same cause of action.

STATEMENT OF THE CASE

On 20 December 1974 Phillip Tyson McQuaid, appellant, instituted an action at law in the Circuit Court for Baltimore County by the filing of a declaration seeking damages from United Wholesale Aluminum Supply Co., Inc. and Sidney Pomer, appellees, for false imprisonment (count one) and malicious prosecution (count two). Appellees demanded particulars of count one and demurred to count two. Appellant excepted to the demand for particulars. On 24 March 1975 the court sustained both the demand for particulars and the demurrer with leave within twenty days On 7 May 1975 appellant again instituted the action by filing a declaration. The first count was the same as that in the original declaration. The second count, however, attempting to overcome the ground for the demurrer, contained additional allegations that the prosecution was without probable cause. On 10 June appellees filed a motion raising preliminary objection. The motion recounted the history of the prior action leading to the judgment of non pros and asserted:

                to give particulars as to the first count and to amend as to the second count.  1  Appellant did neither within the time granted.  On 29 April 1975 appellees moved for a judgment of non pros on each court for failure of appellant to comply with the order of 24 March.  The same day the court ordered that 'Judgment of Non Pros be granted in favor of (appellees) on Counts One and Two of the Declaration and that court costs be paid by (appellant).'
                

'The basic rule of res judicata is that facts or questions which were in issue or might have been put in issue, but were not, and which could have been determined by a Court which had jurisdiction of the parties and the subject matter are conclusively settled by a final judgment in the first case and may not again be litigated in a subsequent action between the same parties though a subsequent suit takes a different form or is based on a different cause of action.'

It prayed for an order granting the motion and dismissing the declaration. Appellant answered. Although he admitted that his 'failure to prosecute an earlier suit resulted in a Judgment Non Pros. which had the effect of terminating

that action and allowing (appellees) a Judgment for costs,' he urged that the 'Judgment Non Pros. was without prejudice and not based on the merits of the case. Therefore, there is no bar to another suit, based on the same cause of action.' Upon a hearing on the motion and answer on 27 August 1975, the motion was granted. Judgment was entered in favor of appellees and against appellant for costs. An appeal therefrom was noted on 25 September.

ISSUE FOR DECISION

Did the trial court err in granting the motion raising preliminary objection? ²

THE LAW

Res Judicata

The doctrine of res judicata is not applicable in the facts and circumstances of this case. The principle of the doctrine of direct estoppel by judgment and collateral estoppel by judgment ³ was set forth by the Court of Appeals in Sterling v. Local 438, 207 Md. 132, 140, 113 A.2d 389, 393 (1955), cert. denied, 350 U.S. 875, 76 S.Ct. 119, 100 L.Ed. 773 (1955):

'If the second suit is between the same parties and is upon the same cause of action, a judgment in the earlier case on the merits is an absolute bar, not only as to all matters which were litigated in the earlier case, but as to all matters which could have been litigated.' (Emphasis supplied)

See Frontier Van Lines v. Maryland National Bank and Trust Company, supra, 274 Md. at 624, 336 A.2d 778; Travelers Insurance Co. v. Godsey, 260 Md. 669, 676 (1971); A. B. Veirs, Inc. v. Whalen, 256 Md. 162, 166-167, 259 A.2d 516 (1969); Davis v. Frederick County, 25 Md.App. 68, 73-80, 334 A.2d 165 (1975) and cases cited therein. It is obvious that the judgment here was not on the merits. We observed in Davis, n. 4, at 73, 334 A.2d at 168, '(I)t is well settled that the rules of res judicata do not apply unless there is a final judgment on the merits. . . .'

Maryland Rule 310, Section a.

The issue for decision must be determined under Maryland Rule 310, entitled 'Default . . . Gen'l.' As adopted effective 1 January 1957 it is comprised of two sections. Section a concerns default by a party asserting a claim. It provides:

'If a party asserting a claim is in default, for failure to comply with the requirements as to time Section b deals with default by a party against whom a claim is asserted. It states:

allowed for pleading, a judgment of non pros may be rendered against him at law, or his action may be dismissed in equity, on motion of the opposite party, or by the court without motion.'

'If a party against whom a claim is asserted is in default, for failure to comply with the requirements as to time allowed for pleading, unless the time be enlarged by the court for good cause shown, judgment may be entered against him in an action at law or the bill may be taken pro confesso in a proceeding in equity, on motion of the adverse party, and thereupon the case shall proceed ex parte as against such party.'

It is patent that under Rule 310, § a the rendering of the judgment of non pros as to the original declaration was proper, and appellant so concedes. The question is whether the intendment of the Rule is that further action be barred. To put it another way, does the Rule contemplate that the judgment of non pros be with prejudice. We conclude that it does not.

Section b of Rule 310 is characterized in the Editor's note as 'a combination of the former law and equity rules and statutory material cited in the source line.' ⁴ The Editor added: 'It would seem that no change was intended.' The Editor noted that § a is 'new'. This latter statement is misleading. Rule 310 stemmed from former Rule 7 of the General Rules of Practice and Procedure, apparently adopted in 1949. It was entitled 'Judgment by Default', and provided:

'If a party is in default for failure to comply with the requirements as to time allowed for pleading, judgment may be entered against him on motion of the adverse party.'

Rule 310 broke down 'party' into a party asserting a claim in § a and a party against whom a claim is asserted in § b. The substance of the provisions of § a were not only present in former Rule 7, but were established in the law prior to the adoption of Rule 7. Professor J. P. Poe in the second volume of his Pleading and Practice (5th ed.), Tiffany's Edition, published in 1925, after discussing the voluntary dismissal of a suit by the plaintiff in § 234, ⁵ declared in § 235: 'The suit may also be ordered to be dismissed by the court without a trial, where the plaintiff . . . is in default for not filing at the proper time the necessary pleading when under rule to do so, or for failing to comply with any other rule properly laid. Technically, this judgment is termed a non pros.' This was in accord with Marsh v. Johns, 49 Md. 569, 571 (1878), in which the Court said:

'(I)t is competent for either party to obtain a rule on the other party to declare, plead, reply, rejoin, etc., by a special day to be prescribed by the court other than either of the general rule days, and if the party so required neglect to declare, plead, reply, rejoin, etc., by the day prescribed, judgment of non pros., or by default, as the case may require, may be entered up against him, unless the court for good cause shown shall enlarge the rule.

The non pros. follows as a consequence by not having filed his pleading, as required by the rule of the court. Evans Pr. 314.

The plaintiff failing to prosecute his suit by filing proper pleading was liable to be non prossed, and the judgment of the Circuit Court so ordering was the necessary result of his default.'

It is apparent that in adopting Rule 310, § a the Court of Appeals was simply recognizing by Rule of Procedure the existing law of this State.

Section a of Rule 310 does not declare whether a judgment of non pros entered under its provisions is a bar to further action. ⁶ We look, therefore, to the law as it was before the adoption of the Rule. 2 Poe, Pleading and Practice (5th ed.), referring to a judgment of non pros entered upon default of a plaintiff in pleading, said, § 235: 'In these cases also, (as in a voluntary dismissal or a voluntary submission to a judgment of non pros), the costs are thrown upon the plaintiff; but, here too, he may renew the litigation by bringing a fresh suit, and for the purposes of this suit the former action will be entirely disregarded.' In § 362 Poe laid it out clearly:

'Where the plaintiff fails to prosecute his suit with effect, and a judgment of non pros. is entered up against him, it is a final judgment, and entitles the defendant to execution for his costs. Such 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, or for failing to comply with any special rule of the court, by the time therein prescribed, as, for example, the Language identical to §§ 235 and 362 of volume 2 of Tiffany's Edition of Poe appears in 3 Poe's Pleading and Practice (6th ed.) §§ 235 and 362, edited by H. M. Sachs, Jr., Esq., and published in 1975.

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