Norris v. Ahles

• Decision Date: 03 February 1911
• Citation: 80 A. 654,115 Md. 62
• Parties: NORRIS v. AHLES et al.
• Court: Maryland Court of Appeals

80 A. 654

115 Md. 62

NORRIS v. AHLES et al.

Court of Appeals of Maryland

February 3, 1911

Appeal from Circuit Court of Baltimore City; Alfred S. Niles, Judge.

Suit by John Ahles and others against William I. Norris. From an order rescinding a decree dismissing the bill, defendant appeals. Appeal dismissed.

Argued before BOYD, C.J., and BRISCOE, PEARCE, SCHMUCKER, BURKE THOMAS, PATTISON, and URNER, JJ.

Charles F. Harley, for appellant.

C. Ross Mace and Charles Pielert, for appellees.

BOYD C.J.

This is an appeal from an order rescinding a decree dismissing the bill of complaint filed by the appellees against the appellant, and reinstating the cause. The defendant (appellant), having filed his answer to the bill of complaint on February 1, 1910, directed the clerk on February 16th to enter a "rule further proceedings" on the plaintiffs, and the plaintiffs having failed to file a replication to the answer within 10 days after notice of the rule, the court on February 28th dismissed the bill and required them to pay the costs. No opinion was filed giving the reasons for rescinding the decree, but the court might well have relied on the fact, as appears by the dates in the record, that the defendant prematurely entered the rule further proceedings. Section 161 of article 16 of the Code of 1904, after requiring a general replication to be filed within 15 days after an answer is filed (excepting under certain circumstances not applicable to this case), provides that: "If the plaintiff shall omit or refuse to file such replication within fifteen days after answer filed, the defendant shall be entitled to a rule further proceedings within ten days after notice of such rule; and upon failure to comply with such rule, the defendant shall be entitled to have the bill dismissed." It may be remarked in passing that, while failure to comply with the rule may entitle the plaintiff to have the bill dismissed, that does not deprive the court of the power to reinstate it, if satisfactory reasons be shown.

As the answer was filed on February 1st, the plaintiffs had the whole of February 16th on which to file a replication, as that was " within fifteen days after answer filed." It is true that the record shows that the rule was not served until the 17th, but as the defendant was only entitled to a rule further proceedings, "if the plaintiff shall omit or refuse to file such replication within fifteen days after answer filed," he had no more right to enter the rule on the 16th than he would have had to enter it on any previous day between the 1st and 16th. The plaintiffs would have had until February 27th, inclusive, if the rule had been laid and served on the 17th, and the decree of dismissal was obtained on February 28th. If a plaintiff is to be held to such strict account as to make him liable to have his bill dismissed for one day's default under our equity practice, a defendant should at least be held to the strict letter of the statute, and not be permitted to commence the proceedings, upon which he bases the default until he is entitled to do so by the statute. The learned judge might therefore have properly rescinded the order because the foundation for the default was based on the premature action of the defendant; but, regardless of that we have no doubt of his power to grant the order.

The application to rescind the decree was filed on March 5 1910--just five days after it was passed, and therefore before it was enrolled, as a decree does not become enrolled until the expiration of 30 days from its date, "the day of the date inclusive." Section 177 of article 16. As is said in Miller's Eq. Proc. 355: "Before a decree is enrolled it is entirely within the province of the court to revise it; the decree being subject to the control of the court until enrollment. It may be altered, revised, or entirely revoked upon application to the court by petition." Even at law judgments for defaults are for the most part subject to the control of the court during the term at which they are rendered, or before they become enrolled. We say "for the most part" as there may be some defaults, such as those provided for by the "practice acts," which would not be, and the case of Heinekamp v. Beaty, 74 Md. 388, 21 A. 1098, 22 A 67, shows how far this court has felt justified in going to prevent the enforcement of a default. In that case a "rule security for costs" was laid in September, 1889, and had not been complied with on September 30, 1890, when the defendants moved for a judgment of non pros.; but this court sustained the action of the lower court, which permitted the plaintiff to comply with the rule after the motion for non pros. had been made, but before it was acted on by the court--although that statute provided that "the plaintiff shall have until the second day of the...