State Roads Commission of Md. v. Smith

• Decision Date: 21 March 1961
• Docket Number: No. 166,166
• Parties: STATE ROADS COMMISSION OF MARYLAND v. George L. SMITH.
• Court: Maryland Court of Appeals

Page 537

224 Md. 537

168 A.2d 705

STATE ROADS COMMISSION OF MARYLAND v. George L. SMITH.

No. 166 Court of Appeals of Maryland.

March 21, 1961.

As Modified on Denial of Reargument April 7, 1961.

Carl H. Lehmann, Jr., Sp. Atty., Baltimore (C. Ferdinand Sybert, Atty. Gen., Joseph D. Buscher, Sp. Asst. Atty. Gen., and Robert H. Archer, Jr., Sp. Atty., Bel Air, on the brief), for appellant.

Everett L. Buckmaster, Baltimore (T. Leo Sullivan, Bel Air, George W. White, Jr., Buckmaster, White, Mindel & Clarke, Baltimore, on the brief), for appellee.

Before BRUNE, C. J., and HENDERSON, PRESCOTT, HORNEY and MARBURY, JJ.

BRUNE, Chief Justice.

The State Roads Commission (the Commission) appeals from a judgment in a condemnation case in the Circuit Court for Harford County, entered for the property owner, George L. Smith, upon the jury's return of an inquisition assessing damages at $8,000. ¹

The appellee filed a motion to dismiss the appeal which we shall consider first. He contends that the Commission's invocation of procedure for the review of points or questions by the Judges of the Third Judicial Circuit, sitting in banc pursuant to Art. IV, Sec. 22 of the Constitution of Maryland, barred an appeal to the Court of Appeals, notwithstanding the abandonment of these proceedings for a review by the court in banc before any decision (indeed, before any hearing) by such court.

It is not clear from the record at just what point or why the Commission abandoned the court in banc review which it originally sought. Points were promptly reserved for consideration of the court in banc and a bill of exceptions in support thereof was prepared and filed on April 28, 1960. ² (See Md. Rule 510.) Review by a court in banc in the counties is a procedure long authorized, but rarely used. We understand that the case was about to come up before the Judges of the Third Circuit in banc when the Commission sought and obtained an order of the Circuit Court for Harford County filed on May 5, 1960, dismissing its bill of exceptions 'without prejudice.' On the same day the Commission filed an order for appeal to this Court. (The appellee later sought and obtained an extension of time for transmitting the record, in order to have an opportunity to examine it.)

The appellee contends that the proceedings looking towards a review by the Court in banc constituted an election of remedies which precluded an appeal to this Court. This contention necessarily rests on election or waiver, since no basis for estoppel is suggested.

The appellee states, and we agree, that a reservation of points or questions for consideration by the Court in banc is a substitute for an appeal to the Court of Appeals. Costigin v. Bond, 65 Md. 122, 3 A. 285. The appellee further asserts that such a proceeding 'concludes the case as regards the party taking the appeal as effectively as a decision of this Court.' That is true with regard to the decision of the Court in banc as against the party at whose instance the points were reserved. Constitution, Art. IV, Sec. 22; Shueey v. Stoner, 47 Md. 167; Board of Medical Examiners v. Steward, 207 Md. 108, 113 A.2d 426. See also Tyler v. Board of Supervisors of Elections of Baltimore County, 213 Md. 37, 131 A.2d 247. But this Section contains no such terms or provisions with regard to the effect of the initiation of such proceedings if abandoned and not carried through to decision.

No case in this State has directly passed upon the question now presented by the appellee's motion to dismiss, and we derive little assistance from authorities elsewhere dealing with statutory provisions differing from our own constitutional provision. At the argument the appellee referred to a statement in 18 Am.Jur., Election of Remedies, § 28, that 'the rule is that where one has a right to appeal to either of two courts, by an appeal to one of them he irrevocably elects to pursue his remedy there and cannot afterward appeal to the other' and he also referred us to the one case cited in Am.Jur. in support of the passage quoted, Field v. Great Western Elevator Co., 6 N.D. 424, 71 N.W. 135, 66 Am.St.Rep. 611. The Field case, applying a North Dakota statute, and some other cases which we have found in our research (such as Dunkle v. Elston, 71 Ind. 585, and Searle v. Whipperman, 79 Ind. 424), announce the rule that where a party may pursue either of two remedies for the review of a decision, by adopting or claiming one he waives the other; but many, if not most of the cases reaching this result do so where the first alternative chosen has been pursued to decision or judgment. See, for example, Indiana Mutual Fire Ins. Co. v. Routledge, 7 Ind. 25 (cited in the Field case); Traders Ins. Co. v. Carpenter, 85 Ind. 350; Harvey v. Fink, 111 Ind. 249, 12 N.E. 396. See also 4 C.J.S. Appeal and Error §§ 27, 32, 33, where related problems are considered and many cases from other jurisdictions are collected. In § 27, p. 121, under the heading 'Pendency in Another Court', it is stated that: 'As a general rule, even when an appellate review may be had in either of two different courts, if a cause has been brought before one court, it cannot, while such proceeding is pending, also be brought before another court, unless the different proceedings relate to different issues.' The implication seems clear that the mere initiation of proceedings for review in the appellate court first chosen would not automatically bar subsequent resort to the other.

Returning to the provisions of our own Sec. 22 of Article IV we find (as already noted) no express provision that the mere taking of steps necessary to a review by a Court in banc precludes the abandonment of such review and the taking of an appeal to this Court. (Any such appeal must, of course, be taken within the time allowed therefor, but that presents no problem here.) Nor do we find in Sec. 22 any such implication.

In Costigan v. Bond, supra (followed in Board of Liquor License Com'rs for Baltimore County v. Handelman, 212 Md. 152, 161, 129 A.2d 78), the actual holding was that where a party failed to reserve a point or question for determination by the Court in banc during the day on which the adverse ruling was made, the Court in banc was without jurisdiction of the appeal. The opinion in the Costigan case is brief. One passage standing alone--where the Court said that the party taking an exception would have the entire sitting of the trial court (that is, until adjournment for the day) 'to determine whether he would have his appeal to the Court in banc, or to the Court of Appeals'--might seem to lend some support to the appellee's contention. Taken in context, however, it does not seem to us to do so. The Court was there holding that the 'sitting' of the trial court meant the sitting for the day on which the questioned ruling was made and not for the whole trial term. The Court pointed out that the 'word 'sitting' is not synonymous with 'term' of the Court.' We note that the Court was not discussing the time allowed for an appeal to the Court of Appeals, which, under Rules 2 and 27 of this Court relating to appeals then in force, (the Rules of 1883), was two months. The unexpired term of the trial court might have been either greater or less. The question now presented was simply not involved in the Costigan case, and we have no reason to suppose that the Court was then undertaking to decide it.

Under the doctrine of election of remedies, there is some division of authority as to whether or not the mere institution of a suit which is not carried through to judgment constitutes an irrevocable election which bars another suit seeking a different remedy. Maryland follows the rule that it does not so operate. Bolton Mines Co. v. Stokes, 82 Md. 50, 33 A. 491, 31 L.R.A. 789; Hamlin Machine Co. v. Holtite Mfg. Co., 197 Md. 148, 158, 78 A.2d 450. See also Perdue v. Brittingham, 186 Md. 393, 401, 47 A.2d 491. This, we think, is persuasive, at least by analogy, in construing Section 22 of Article IV, supra.

The appellee has cited Giles v. DiRobbio, 186 Md. 258, 46 A.2d 611, but it seems to us to have no real bearing on the present case. There, after judgment had been entered for the defendant in an ejectment suit, the plaintiffs filed in the trial court a petition which this Court described as 'a camouflaged motion for a new trial.' It was based upon alleged newly discovered evidence and sought, upon withdrawal of the then pending appeal, the reinstatement of the case on the trial docket and its subsequent dismissal (subject to such conditions as the court might deem proper), so that the plaintiffs could start over again. The denial of this petition was affirmed on appeal. Much more relevent, we think, to the present case (though still dealing with a different question) is Tiller v. Elfenbein, 205 Md. 14, 106 A.2d 42. There, this Court upheld the granting by the trial court of a partial new trial after the dismissal of an appeal to this Court, which had been entered after the defendant's original motion for a new trial had been overruled. The partial new trial was awarded on a petition filed while the appeal to this Court was pending, but also while the trial court still had discretionary power to strike out its own judgment, and the petition was not granted until after the original appeal had been dismissed. The recent case of Restivo v. Princeton Const. Co., 223 Md. 516, 521, 165 A.2d 766, cited and, by analogy, followed the Tiller case.

We are of the opinion that a construction of Sec. 22 of Art. IV under which the initiation of proceedings for review by a Court in banc, not carried through to hearing and determination, would bar an appeal to this Court (if taken in proper time) after voluntary dismissal or abandonment of the proceedings for review by a Court in banc, would not only be inconsistent with our decisions above referred to relating to the election of remedies, but would read into the...