Schnapper v. Yoe
| Decision Date | 08 March 1950 |
| Docket Number | 90. |
| Parties | SCHNAPPER v. YOE. |
| Court | Maryland Court of Appeals |
James J. Lindsay, Baltimore (Theodore Sherbow Baltimore, on the brief), for appellant.
Max R Israelson and Joseph I. Pines, Baltimore, on the brief, for appellee.
Before MARBURY, C J., and DELAPLAINE, COLLINS, GARSON, HENDERSON and MARKELL JJ.
John E. Yoe appellee here, plaintiff below, on March 22, 1945 by Max R. Israelson, Esq., his attorney, filed a suit against Harry Schnapper, individually and trading as Diamond Cab Company, defendant below, appellant here, for personal injuries and property damage alleged to have been sustained as a result of a collision between the automobiles of the appellant and the appellee. James J. Lindsay, Esq., on May 11, 1945, entered his appearance and filed as attorney for the defendant a general issue plea.
The case was placed on the trial docket for seven terms of court. On June 20, 1948, the Clerk of Court under the provisions of Rule 534 of the Supreme Bench of Baltimore City marked the case 'dismissed for want of prosecution,' and entered a judgment of non pros for the defendant for costs of suit.
Later, Harry Schnapper, individually and trading as Diamond Cab Company, appellant here, by another attorney Maurice W. Zetlin, filed a separate suit for property damage and personal injuries, arising out of the same collision, against John E. Yoe, appellee here.
On April 26, 1949, Max R. Israelson, Esq., filed in the case at bar the following petition:
'1. That he filed the above entitled action on March 22, 1945.
'2. That approximately at the same time a suit arising out of the same action; namely, an automobile accident on December 28, 1944, between the vehicles of the parties named, was filed by Harry Schnapper against your Petitioner, in this Court.
'3. That both of these cases were called upon the trial docket a great number of times and that your Petitioner and his Counsel were ready at all times for the trial of the same: that for almost two years after these cases were docketed they were called and agreed among counsel for the respective parties to be tried together; that no formal Petition for consolidation was ever filed. '4. That unbeknown to your Petitioner or his counsel, who assumed that the cases were being called and would be set for trial together, on or about January 31, 1947, the instant case was dismissed under Supreme Bench Rule 534 for lack of prosecution although the companion case of Schnapper v. Yoe, was called from time to time and did not come within the province of said rule.
'5. That recently your Petitioner's counsel, upon being advised that the case of Schnapper v. Yoe would be up for trial, examined the Court docket to insure the trial of both cases at one time as originally agreed among counsel and, discovered for the first time that said dismissal had been entered; that at all times prior to the dismissal of said case all counsel for the representative parties, including counsel for Schnapper as Defendant in the case of 'John E. Yoe v. Harry Schnapper, etc.' agreed that said cases were to be tried together.
'6. That personal counsel for Harry Schnapper, individually and trading as Diamond Cab Company, Defendant, in the case of 'Harry Schnapper, etc. v. John E. Yoe,' consent to the reinstatement of the case of 'John E. Yoe v. Harry Schnapper, etc.'; however, counsel for the insurance carrier in the case of 'John E. Yoe v. Harry Schnapper etc.' while expressing a willingness to do so, has advised that the insurance company 'regret that they must decline the request.'
On the same day the following assent was filed in the instant case:
'The undersigned hereby confirm that the matters and facts stated above are true and correct to the best of our knowledge and information; and as personal counsel for Harry Schnapper we did agree with counsel for John E. Yoe that these cases be tried together; and further, that we consent to the reinstatement of 'Yoe v. Schnapper' which has hitherto been dismissed under Supreme Bench Rule 534.
'Plaintiff in case of Schnapper v. Yoe.'
On April 29, 1949, James J. Lindsay, Esq., as attorney for appellant, filed in this case the following answer to the aforesaid petition filed on April 26th:
'Harry Schnapper, individually and trading as Diamond Cab Company, the Defendant in the above cause of action, and insured under the Statutes of the State of Maryland in the American Fire and Casualty Company of Orlando, Florida, by James J. Lindsay, his and its Attorney, answering the Petition and Order Nisi in the above entitled matter, respectfully represents unto the Court:
'1. That the suit asking damages in the amount of $1,000.00 for property damage and personal injuries grew out of a collision between a taxicab owned and operated by Schnapper and the automobile of Yoe at 6:30 P. M. on December 28, 1944; that suit was filed on March 22, 1945 that on April 11, 1945, the Defendant, Schnapper, filed a General Issue Plea.
'2. That this Defendant has no information whatsoever as to the filing of a suit on behalf of Schnapper against the above named Plaintiff; general information discloses, however, that some time after March 22, 1945, suit was filed by this Defendant against the Plaintiff herein by Maurice W. Zetlin, Esquire Attorney, but that the Defendant's Attorney for purposes...
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