Sawyer v. Novak, 11

• Decision Date: 12 January 1955
• Docket Number: No. 11,11
• Citation: 206 Md. 80,110 A.2d 517
• Parties: Eugene L. SAWYER v. Charles J. NOVAK, Attorney Named in Mortgage, et al.
• Court: Maryland Court of Appeals

Page 80

206 Md. 80

110 A.2d 517

Eugene L. SAWYER v. Charles J. NOVAK, Attorney Named in Mortgage, et al.

No. 11.

Court of Appeals of Maryland.

Jan. 12, 1955.

Rehearing Denied Feb. 18, 1955.

Albert F. Wheltle, Baltimore (Sidney I. Kellam and Mayer W. Perloff, Baltimore, on the brief), for appellant.

Max Sokol and Melvin J. Sykes, Baltimore, for Charles J. Novak.

Michael Paul Smith, Towson (W. Lee Harrison, Towson, on the brief), for Stanley E. Fradkin.

Before BRUNE, C. J., and DELAPLAINE, COLLINS, HENDERSON and HAMMOND, JJ.

HENDERSON, Judge.

This appeal is from a decree overruling exceptions by a mortgagor to the ratification of a foreclosure sale of mortgaged property and ratifying the sale. The grounds of the exceptions were that the property was not properly advertised and that the price obtained was inadequate. Exceptions to the sale were also filed by the United States, holding a tax lien to the extent of some $70,000 against the appellant. However, the United States is not a party to this appeal.

The appellee filed a motion to dismiss the appeal on the ground that the appellant failed to print all of the evidence bearing upon the adequacy of price, particularly certain testimony brought out on cross-examination that qualified the testimony on direct examination. The appellant filed an answer to the motion contending that the omitted testimony only went to credibility, and also filed a supplemental appendix containing additional testimony, to which the appellee filed a motion ne recipiatur. We heard argument on these motions in advance of the hearing on the merits and overruled the motions in a per curiam opinion.

Rule 39 of our Rules and Regulations Respecting Appeals requires the appellant to print 'such parts of the record as he desires the Court to read.' We have construed the rule to mean that if the appellant relies on a point that makes it necessary for the Court to pass on the sufficiency of the evidence he must print whatever is material to the determination of the issue. Sunshine Laundry Corp. v. White, 197 Md. 582, 80 A.2d 1; Gmurek v. Kajder, 203 Md. 437, 101 A.2d 204. The rule is now being studied by our Rules Committee, for purposes of clarification. However, there is no contention here that the appellant was misled by the form of the rule. The contention is that the omitted testimony was not essential to a decision of the questions presented, and that in any event it was supplied in printed form well in advance of the hearing. We have recognized that some allowance must be made for a genuine difference of opinion as to what should be printed. Otherwise, an appellant might be forced to print the whole record, on peril of dismissal, and this would defeat one of the purposes of the rule. In Kenny v. McAllister, 198 Md. 521, 84 A.2d 897, and Klein v. Dougherty, 200 Md. 22, 87 A.2d 821, we stated that where there is reasonable ground for difference of opinion we would not dismiss the appeal for not printing everything that the appellee thought necessary, even though we might not impose the cost of printing the omitted matter on the appellee. Several months before the hearing on the motion to dismiss in the instant case, additional testimony had been supplied in printed form which seemed to meet the objections raised by the appellee, although additional testimony was later supplied by the appellee when its brief was printed. The time for filing the appellee's brief and appendix had been extended. Under the circumstances, and in spite of the fact that the time for filing the appellant's brief and appendix had expired, we felt justified in receiving the supplemental appendix printed by the appellant and declining to dismiss the appeal, since there was no possibility of prejudice to the appellee or inconvenience to the Court. In this respect, the case of Musser v. Citizens Bank of Takoma Park, 195 Md. 100, 72 A.2d 762, is distinguishable.

On the merits of the case, it appears that the appellant was the owner of a tavern and apartment building, 6300 Old North Point Road, Baltimore County, which he erected in 1945. In 1946, he obtained a building association loan of $12,000. The tavern had been leased to several different tenants, and had not been notably successful. It was shown that the appellant had been forced to finance a previous tenant, who had nevertheless gone into receivership. The tenant who purchased from the receiver had his license revoked and moved out. The tavern was unoccupied for a year prior to the sale here in question. In the meantime, the mortgage payments were not kept up, and in June, 1952, foreclosure proceedings were instituted and the property was advertised for sale. The appellant then made a payment on account of $1,000, which did not bring the indebtedness to date, but was accepted on condition that future payments be made regularly. But no further payments were made, the appellant could not be reached, and the property was again advertised for sale on November 12, 1952. The advertisement was printed in the Jeffersonian, a newspaper publishedn in Baltimore County, for four successive weeks, and shorter version in the Baltimore Sun. Signs were also posted on the property. The balance due at that time was slightly in excess of $9,000. The advertisement described the property by metes and bounds, as well as by street number, under the heading 'desirable leasehold tavern and apartment property'. In the text it was stated that 'The improvements consist of a cinder block tavern and apartment.'

The sale was attended by about twenty persons. The appellant was not present and the attorney conducting the sale had no key to the tavern. Hence, prospective purchasers could not enter, although they could see through the plate glass front. The auctioneer announced that there were four rented apartments on the second floor and invited bidders to inspect one of them, the other tenants being out. The bidders looked over one of the apartments and talked to the tenant. There were forty-nine bids made, the property finally going to Mr. Fradkin, who made the high bid of $20,600.

A number of witnesses were called to testify as to the fair market value of the property, but much of the proffered testimony was ruled out on the ground that the witnesses were not sufficiently qualified. It seems to have been generally agreed that there were no comparable sale of similar property in the neighborhood upon which to base an estimate of fair market value. Mr. Novak, the attorney named in the mortgage, testified that the high bid was a good price for the property at a mortgage sale. Mr. Miller, the auctioneer, testified that the property sold for a fair price, taking into account the fact that the tavern was not in operation. The appellant testified that the property was worth $50,000, largely on the basis of his investment, which he claimed was $34,500 in 1945. He testified that the apartments rented for a total of $2,880 a year, and the tavern had formerly rented for $3,600 a year. Mr. Cerame, a witness called by the United States, testified that the property was worth $60,000, a figure he obtained by capitalizing the rents at 10%. He qualified this statement, however, by admitting that at a forced sale the property should bring a minimum of...