Ridgely v. Wilmer
| Decision Date | 01 July 1903 |
| Citation | 55 A. 488,97 Md. 725 |
| Parties | RIDGELY v. WILMER et al. |
| Court | Maryland Court of Appeals |
Appeal from Circuit Court No. 2 of Baltimore City; John J. Dobler Judge.
Suit by Franklin W. Ridgely against Edwin W. Wilmer and another. Bill dismissed, and plaintiff appeals. Reversed.
Argued before McSHERRY, C.J., and FOWLER, BOYD, PAGE, PEARCE, and SCHMUCKER, JJ.
John L G. Lee, for appellant.
D Eldridge Monroe, for appellees.
The bill of complaint of the appellant sets forth: That three judgments were entered by a justice of the peace, Lucchesi one of the defendants, in favor of the appellee Wilmer, and three judgments against James A. Galloway. That these judgments were obtained on the following facts: Ridgely, on the 19th of December, 1900, borrowed from Wilmer $30, and gave him his note for $33. In February, 1901, he borrowed $10, and gave his note, indorsed by Galloway, for $11; and on December 27, 1900, borrowed $10, and gave his note, indorsed by Galloway, for $11. Copies of the notes filed in the record show, however, that the notes were given to Galloway. It also appears that both Ridgely and Galloway agreed that on default of payment at maturity of the principal and interest judgment by confession might be entered in favor of the holder of the notes, to include 10 per centum for expense of collection, $10 as an appearance fee for attorney and costs of suit; and they also waived appeal, supersedeas, bankruptcy, injunction, summons, and appearance in any court or before any justice of the peace having jurisdiction. The bill further alleges that the judgments against the appellant, amounting in the aggregate to $93.39, and against Galloway, aggregating $94.14, were entered by the justice of the peace without any summons or appearance; that at the time the judgments were rendered Ridgely had already paid Wilmer $58, or $8 more than in fact the latter had received; and for that reason Ridgely had refused to make more payments. It is charged that the notes were usurious, and the judgments fraudulently obtained, and to enforce the latter would cause great and irreparable loss and damage. The complainant claims to be entitled to have the notes and judgments canceled, and prays that the appellees may be restrained by injunction from enforcing them. Galloway is not joined in the bill. The usual order for a preliminary injunction was issued, and both the appellees answered. Wilmer denied the alleged fraud, and averred that he bought the notes; and by the seventh paragraph of his answer sets up that the complainant has a full remedy at law, and, further, that the "plaintiff has failed to make proper parties, because James Galloway is a proper party, and that the person who signed the bill was not at that time an attorney of the court." The appellant joined issue. On the 24th day of September, 1902, leave was granted to take testimony, but the record fails to show that any was taken. On the 2d day of April, 1903, the appellees moved, in writing, to dismiss the bill, because "the plaintiff has failed to comply with the provisions and requirements of the thirty-fifth general rule of pleading, in reference to the objection for want of parties." On the 2d day of April, 1903, after a hearing and the agreement of counsel, the court dismissed the bill, "without prejudice the plaintiff to file a new bill with the proper parties"; and from this decree the appeal has been taken.
A motion was made to dismiss the appeal, and of the two grounds assigned the first was, because the decree, being "without prejudice to the plaintiff," does not adjudicate any right of the parties, and is not, therefore, so far final as to authorize the appellants to prosecute an appeal. Whatever might be the force of this consideration as ordinarily applied, in this case it cannot apply, because of the fact that this particular decree had the effect of dissolving the injunction (Wagoner v. Wagoner, 77 Md. 189, 26 A. 284), and from such an order appeal lies. Johnson Co. v. Henderson, 83 Md. 126, 34 A. 835.
The second ground for the motion was that the dismissal of the bill was a matter within the discretion of the court, under the thirty-fifth general equity rule (section 163, art. 16 Code Pub.Gen.Laws), and therefore not reviewable. That rule provides that, when a defendant in his answer suggests that the bill is defective for want of parties, the plaintiff may have the case set down for argument on that objection only; and, if he shall not set it down, but proceed to a hearing notwithstanding the objection, if the defendant's objection be allowed he shall not be entitled as of course to an order for liberty to amend his bill by adding parties, but the court may, "if it be thought fit, dismiss the bill." If, however, the cause be set down on the objection, and it be allowed, the "plaintiff shall have the liberty to amend on paying the costs of the amendment." The record does not show that the cause was set down for a hearing on the objection of want of party plaintiff; but it appears that on the 2d of April, 1903, the defendant prayed the court to dismiss the bill because of the failure of the plaintiff to comply with the provisions of the thirty-fifth rule "in reference to objections for want of parties," and that on the same day the decree dismissing the bill was passed. The court, therefore, when it passed its decree, acted upon the motion of the defendant to dismiss the bill, and dismissed it because it thought fit to do so on failure of the plaintiff to set it down for a hearing. It must, therefore, have been held by the court that Galloway was a necessary party, without whom no proper decree could have...
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