Shipp v. Autoville Ltd., 253

CourtCourt of Special Appeals of Maryland
Citation23 Md.App. 555,328 A.2d 349
Docket NumberNo. 253,253
PartiesCarol Susan SHIPP v. AUTOVILLE LIMITED et al.
Decision Date22 November 1974
Charles W. Foster, Bethesda, for appellant

Charles C. Bowie, Rockville, with whom were Brault, Scott & Brault, Rockville, on the brief, for appellees.

Argued before ORTH, C. J., and POWERS and DAVIDSON, JJ.

[328 A.2d 351] ORTH, Chief Judge.


This is an appeal from a judgment for costs in favor of the defendants in an ex delicto action before a jury in the Circuit Court for Prince George's County in which Carol Susan Shipp, appellant, sued Autoville Limited and John A. B. Fenwick, appellees, seeking damages for malicious prosecution and false arrest and imprisonment. The

judgment was entered upon a directed verdict granted by the court at the close of all the evidence. Maryland Rule 552. We reverse

A preliminary issue for decision is whether the appeal is properly before us. The case was tried on 21 and 22 January 1974. The court reserved a ruling on a motion for a directed verdict made by appellees at the close of evidence offered by appellant. The course of events thereafter is shown by the docket entries:

'1/22/74 . . . At the conclusion of the entire case, Motion for Directed Verdict renewed. Motion granted.

1/22/74 Judgment nisi entered in favor of the Defendant for costs.

1-28-74 Final Judgment entered in favor of the Defendant for costs.'

On 20 February 1974 appellant filed an order of appeal. She requested the Clerk to enter an appeal to this Court '. . . from the judgment entered in this action on January 22, 1974.' This was not a final judgment. The general rule is that an appeal may be taken only from a final judgment. Courts Art. § 12-301. See Courts Art. §§ 12-302 and 12-303.

It once was that the practice followed in a law case in entering a final judgment upon a jury trial was different from the practice followed in entering a final judgment upon a bench trial. Uniformity was obtained by rule. Maryland Rule 564 b 1 provides: 'Where an action at law is tried upon the facts by the court, the court shall direct judgment nisi to be entered upon the law and the evidence.' Rule 567 a prescribes: 'A motion for a new trial as to all or part of the matters in controversy shall be filed within three days after the reception of a verdict, or, in case of a special verdict or a trial by the court within three days after the entry of a judgment nisi.' Rule 567 f declares: 'If a motion for a new trial is not made, within the time prescribed by section a of this Rule, the clerk shall enter a final judgment as of

course.' 1 The Court of Appeals explained it all in Merlands Club v. Messall, 238 Md. 359, 362, 208 A.2d 687, 689

'This portion (§ b 1) of Rule 564 was amended to its present form in 1957, to make the practice at law in regard to the entry of judgment by the court sitting without a jury the same as the practice of entering judgment upon a verdict of a jury. See Baltimore Luggage Company v. Ligon, 208 Md. 406, 118 A.2d 665 (1955). Prior to the amendment of Rule 564, an absolute judgment was entered immediately upon the announcement of the court's 'verdict' when sitting without a jury and upon the rendition of special verdicts by a jury, Baltimore Luggage Company v. Ligon, supra. After the amendment, when the facts of the case are tried by the court sitting without a jury, the clerk enters up a judgment nisi, which act is analogous to the entry of a verdict when the facts of the case are [328 A.2d 352] tried by a jury. The principal purpose of the entry of a judgment nisi is to enable an aggrieved party to file a motion for a new trial within three days from the rendition of the verdict or judgment nisi.'

So with respect to actions at law it is now well settled that a) when no motion for a new trial has been filed, the judgment absolute is entered at the expiration of 3 days from the entry of the judgment nisi in a court trial and from the rendition of the verdict in a jury trial, and b) when a motion for a new trial has been filed, the judgment absolute is entered upon denial of the motion, whether the trial be by court or jury. It is the 'final judgment' from which an appeal may be taken. An appeal lies only from a judgment absolute and not from a judgment nisi. Hawkins v. GMAC, 250 Md. 146, 148, 242 A.2d 120. Of

course, the time in which the appeal must be filed runs from the entry of the final judgment. Rule 1012

The Court of Appeals has stated, iterated and reiterated that jurisdiction may not be conferred upon an appellate court in this jurisdiction by consent of the parties. Lang v. Catterton, 267 Md. 268, 275, 297 A.2d 735. It has been steadfast in dismissing appeals not taken from a final judgment. It has found its Rule 812, Section a of which is substantially the same as Rule 1012 applicable to this Court, to be mandatory, giving it no alternative but to dismiss the appeal for non-compliance, in the absence of proof of extenuating circumstances. 2 Hawkins v. GMAC, supra, 250 Md. at 148, 242 A.2d 120. See Rules 835 and 1035. It has dismissed the appeal where the order was filed after the judgment nisi but before the judgment absolute, Merlands Club v. Messall, supra, Hawkins v. GMAC, supra; after the verdict of the jury but before judgment absolute, even through the clerk should have entered judgment, Aronstamn v. Coffey, 259 Md. 47, 267 A.2d 741; Page-Loten v. Howard et ux., 260 Md. 1, 271 A.2d 349; in the absence of both a judgment nisi and absolute, A. & A. Masonry v. Polinger, 259 Md. 199, 269 A.2d 566; when there was no final judgment under Rule 605 (Multiple Claims-Judgment Upon) Arteno v. Arteno, 257 Md. 227, 262 A.2d 493; Lang v. Catterton, supra. The rationale of the action of the Court of Appeals in dismissing the appeals was that there was no order of appeal entered within 30 days after the entry of a judgment absolute. It is this rationale which saves the appeal in the case before us. Appellant's order for appeal was filed after the judgment absolute was entered and within 30 days thereof. Although she designated the appeal to be from the judgment nisi, the designation was superfluous. 3 The order of appeal would have been effective had it merely directed the clerk to note an appeal; it would necessarily follow that it be from the

final judgment. 4 As the order of appeal here was filed within 30 days of the entry of the judgment absolute, we conclude the appeal is properly before us

The sole issue on the merits of the appeal is whether the court below erred in directing a verdict for appellees.

Appellant claims that the evidence adduced was sufficient to compel submission [328 A.2d 353] of the case to the jury. Appellees argue that it was not, and that they were properly entitled to judgment in their favor as a matter of law.


The bare facts are that appellant issued a check payable to Autoville Limited in the amount of $30.20 drawn on her account at the Suburban Trust Company for repairs Autoville had made to her automobile. She later stopped payment on the check, which was returned to Autoville uncollected for that reason. John A. B. Fenwick, Vice President of Autoville, swore out a warrant for her arrest, charging the crime proscribed by Code, Art. 27, § 144-obtaining something of value by check with intent to stop payment. She was arrested under authority of the warrant. When the case came on for trial, the prosecutor entered a nolle prosequi with the notation 'No evidence of criminal intent.' Appellant instituted an action against Autoville and Fenwick for damages arising from the malicious prosecution and false arrest and imprisonment of her. The case terminated at the close of all the evidence in the grant of a motion for a directed verdict in favor of the defendants.

We flesh out this apothegm with an account of the circumstances leading to appellant's order to stop payment and appellees' prosecution of her. The prevailing rule of law is that where the court directs in favor of one of the parties, we must assume the truth of all credible evidence in the case

tending to sustain the contention of the party against whom the verdict is directed as well as all inferences of fact reasonably and fairly deducible therefrom. Trionfo v. R. J. Hellman, Inc., 250 Md. 12, 15, 241 A.2d 554; Buchanan v. Galliher, 11 Md.App. 83, 87-88, 272 A.2d 814. We narrate the evidence adduced accordingly

In 1971 appellant, then single and known as Carol Susan Pike, was a student at the University of Maryland, residing in an apartment at 3588 Powder Mill Rd., Apt. 302, Beltsville, Maryland. 5 On 31 August of that year she and her father, William Patrick Pike, purchased a new 1971 Volkswagen Super Beetle from Silver Spring Auto City, Inc. Among the accessories with which the car was to be delivered equipped as listed on the purchase order was an air conditioner at $379. On 31 May 1972 when the car had been driven about 7,300 miles, appellant took it to Autoville, an authorized service dealer, for repairs to the air conditioning and heater systems. She spoke to William Roberson, a 'service adviser'. He told her the heater was covered by warranty. His recollection was that 'She asked me about the air conditioner and, of course, she said it should be warranty. Now I wasn't too sure because warranty on the air conditioner is kind of tricky, so I said, well, I will check on it. I said, 'I am not sure. I won't guarantee you it is warranty.' I believe she said she would check back with me later during the day. . . . I told her at that time that it was not warranty. Well, she said, 'Go ahead and fix it. It had to be fixed anyhow.''

When she bought the car she received a Warranty Voucher, issued by Volkswagen of America, Inc. and authenticated by the selling dealer. It specified: 'The warranty commences at the date the VW automobile is delivered to the...

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