National 4-H Club Foundation of America, Inc. v. Thorpe, 777
Decision Date | 03 July 1974 |
Docket Number | No. 777,777 |
Citation | 22 Md.App. 1,321 A.2d 321 |
Parties | NATIONAL 4-H CLUB FOUNDATION OF AMERICA, INC. v. Bernard C. THORPE. |
Court | Court of Special Appeals of Maryland |
Stephen Z. Kaufman, Silver Spring, with whom were Linowes & Blocher, R. Robert Linowes and Robert H. Metz, Silver Spring, on the brief, for appellant.
Michael J. Ragland, Rockville, with whom were Charles W. Bell, John T. Bell, Frank S. Cornelius and Bell & Bell, Rockville, on the brief, for appellee.
Argued before ORTH, C. J., and THOMPSON and MENCHINE, JJ.
National 4-H Club Foundation of America, Inc. (National), claiming the right to do so under Maryland Rule 208 a, filed a motion to intervene as defendant in an ejectment action brought by Bernard C. Thorpe (Thorpe) as plaintiff against Bessie V. Mills (Mills) as defendant. The motion to intervene was denied by the Circuit Court for Montgomery County (Shure, J.). This appeal followed. A pending demurrer by Mills has not been heard by the trial court, the proceedings below having been suspended pending this appeal.
Sua sponte, we note that a jurisdictional question arises in this appeal. Although the right to immediate appeal was not contested by the parties, we believe was should discuss the interrelationship of Maryland Rule 208 a and Maryland Rule 605 a. The latter rule bars immediate appeal from an adjudication of less than all claims absent express determination by the trial court that there is no just reason for delay and absent express direction for the entry of judgment by the trial court. Jurisdiction may not be conferred by consent of the parties. Lang v. Catterton, 267 Md. 268, 275, 297 A.2d 735, 739.
That part of Rule 208 that is pertinent to these proceedings reads as follows:
'Rule 208. Intervention.
a. Of Right.
Upon timely application a person shall be permitted to intervene in an action: (a) when the representation of the applicant's interest by existing parties is or may be inadequate and the applicant is or may be bound by a judgment in the action; * * *.'
The part of Rule 605 that is pertinent to these proceedings reads as follows:
'Rule 605. Multiple Claims-Judgment Upon . . . Gen'l.
a. When Entered-As to Part or All.
Where more than one claim for relief is presented in an action, whether as an original claim, counterclaim, cross-claim, or third-party claim, the court may direct the entry of a final judgment upon one or more but less than all of the claims only upon an express determination that there is no just reason for delay and upon an express direction for the entry of judgment. In the absence of such determination and direction, any order or other form of decision, however designated, which adjudicates less than all the claims shall not terminate the action as to any of the claims, and the order or other form of decision is subject to revision at any time before the entry of judgment adjudicating all the claims.'
In the subject case we stress that intervention by National was claimed as a matter of right under Rule 208 a and that the trial court did not make the express determination and the express direction authorized by Rule 605 a.
The question whether denial of intervention, Claimed as a matter of right, gives rise to a concomitant right of immediate appeal, has been the subject of considerable appellate discussion in the Federal Courts, under the Federal Rules of Procedure. 1
The question has not, however, been the subject of appellate discussion in Maryland. 2
3B Moore's Federal Practice, 24.15 discusses appeal rights under Federal Rule 24(a). It is there stated:
'As a general rule, unless an interlocutory order falls within one of the categories from which an appeal may be taken, a decision of a district court must be 'final' in order to be appealable.
The relationship of Federal Rules 24(a) and 54(b) is discussed in 6 Moore's Federal Practice, 54.38 wherein it is said, inter alia:
'The appealability, under amended 54(b), of an order denying intervention raises a troublesome and quite different problem from that involved where intervention is granted and the intervener's claim is thereafter adjudicated.
'We shall first discuss the denial of intervention. As previously stated, there are two different types of intervention-one based upon a permissive right, the other upon an absolute right; and under original 54(b) an appeal based upon the denial of a permissive right would ordinarily not lie because the denial involved an exercise by the district court of discretion and abuse could seldom be shown, but would lie from a denial where the right of intervention was absolute. How stands the matter under amended 54(b)?
In 7A Wright & Miller, Federal Practice and Procedure, Civil § 1923, appellate review of intervention orders is discussed, the authors saying, inter alia:
'An order granting leave to intervene is not final and is not appealable as of right. * * *
'The matter has been much more complicated when review is sought of a denial of intervention, but there are clear signs that the courts are moving to a simpler and more sensible rule. The traditional view has been that the appellate court can reverse if the trial court has erroneously denied intervention of right or if it has abused its discretion in denying permissive intervention, but that its order is not appealable, and the appeal must be dismissed, if the trial court properly denied the application for intervention. * * * It is clear enough what the rule ought to be. Any denial of intervention should be regarded as an appealable final order-as it surely is so far as the would be intervenor is concerned-but the appellate court should affirm unless intervention of right was erroneously denied or more debatably, the trial court seriously abused its discretion in refusing to allow permissive intervention.
'The only obstacle to following the simple rule just described is that there is a substantial body of authority, including cases from the Supreme Court, making the more elaborate distinctions set out earlier. This obstacle may be easily overcome since the only difference between the proposed rule and the earlier rules is the wholly formal one that under the proposed rule the appellate court will affirm denial of intervention when previously, having determined on the merits that the trial court was right, it would dismiss the appeal.
'There is ample evidence that the courts are moving to the simpler rule here proposed. This is found in cases in which the courts have in fact affirmed, though without discussion of this question, when they have concluded that intervention was properly denied. It is found even more strikingly in cases in which the court simply assumes that the order denying intervention is final and goes directly to the merits. 3
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