Switkes v. John McShain, Inc.

• Decision Date: 14 May 1953
• Docket Number: No. 132,132
• Citation: 202 Md. 340,96 A.2d 617
• Parties: SWITKES v. JOHN McSHAIN, Inc. et al.
• Court: Maryland Court of Appeals

Page 340

202 Md. 340

96 A.2d 617

SWITKES v. JOHN McSHAIN, Inc. et al.

No. 132.

Court of Appeals of Maryland.

May 14, 1953.

S. Alfred Mund and Julius G. Maurer, both of Baltimore, for appellant.

C. Damer McKenrick, Baltimore (Bartlett, Poe & Clagett, Baltimore, on the brief), for appellees.

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

HAMMOND, Judge.

Isadore Switkes, having sustained an accidental personal injury, duly filed a claim for workmen's compensation with the State Industrial Accident Commission on June 22, 1951. After testimony had been taken on three occasions, the Commission, on June 30, 1952 disallowed the claim on the ground that the injury did not arise out of and in the course of his employment. Switkes died on July 8, 1952, and two days after his death, his lawyers filed in the Court of Common Pleas of Baltimore notice of an appeal (a copy having been served the same day on a member of the Commission) in the following form:

'Isadore Switkes, Claimant, by S. Alfred Mund and Julius G. Maurer, his attorneys, feeling aggrieved at the order and decision of the State Industrial Accident Commission * * *, enters an appeal * * *.'

On August 1, 1952 the appellees moved to dismiss the appeal because (a) the appellant was dead when it was taken, and (b) the widow and administratrix did not appeal or enter the case within the time allowed by law.

The appellant contends, in effect, that since the employer and insurer, the appellees here, received actual notice of the intention to appeal within the prescribed time, they have not been prejudiced, and the appeal should be considered as having been taken by the widow and administratrix, since she ratified the action taken in the name of her dead husband.

The right to appeal in workmen's compensation cases rests solely on the statute. Section 57 of Article 101 of the Code, 1951 Ed., reads, in its pertinent parts, as follows:

'Any employer, employee, beneficiary or person feeling aggrieved by any decision of the Commission affecting his interests under this Article, may have the same reviewed by a proceeding in the nature of an appeal and initiated in the * * * Courts * * * having jurisdiction * * *. No such appeal shall be entertained unless notice of appeal shall have been served personally upon some member of the Commission within thirty days following the rendition of the decision appealed from. * * *'

The appeal may be taken only by an employer, an employee, or a 'person feeling aggrieved by any decision of the Commission affecting his interests under this Article, * * *.' Certainly, the dead man cannot be regarded as coming within any of the categories. This Court said in Billingslea v. Smith, 77 Md. 504, 521, 26 A. 1077, 1082, where one of the two co-plaintiffs died and the proceedings were continued in both names, that the use of both names was an irregularity but not fatal, because: 'The use of the name of the dead man could confer no rights on any one, and could do no harm to any one. It was surplusage, which ought not to have incumbered the proceedings.'

In Owings v. Owings, 3 Gill & J. 1, 4, a decree of the Chancellor was passed in favor of the defendant. An appeal to this Court was prayed by the solicitor for the complainant, which was allowed, the record was brought up and there was an appearance for the defendant. A motion to dismiss was filed, which alleged that the appellant had died before the appeal was prayed. The Court held, that the existing relevant statutes (now codified as Sections 81 and 83 of Article 5 of the Annotated Code of Maryland, 1951) did not apply to appeals brought in the name of a dead person. The heirs of the appellant entered the case after the time for appeal had expired. The Court held this to be of no significance and said that the appearance of counsel for the appellee in order to move to dismiss: '* * * could not have the effect, to render the mere sending up the record, and docketing the case in the name of one who was dead, a good and available appeal.

'It was not a mere irregularity, but a complete and radical defect.' The appeal was dismissed.

Goldschmid v. Meline, 86 Md. 370, 371, 373, 38 A. 783, 784, decided, where a party plaintiff died after the rendition of a judgment for the defendant and before an appeal was taken, that his executor or administrator could not appeal from judgment, because the statute does not provide for an appeal in such case. The Court held: 'By the rule of the common law, if the plaintiff in error dies before errors assigned, the death abates the writ * * * and as, unless specially authorized by statute, an appeal will not lie where a writ of error would abate, * * *.' The case was dismissed because there was no statute permitting the executor or administrator to prosecute an appeal of a plaintiff who died before the appeal had been entered. The Court concluded: 'It is competent to the legislature to supply this omission, but this court has no authority to do so.' See also Harryman v. Harryman, 49 Md. 67; and Thomas v. Thomas, 57 Md. 504.

After the decision in the Goldschmid case, the Legislature, in 1898, enacted what is now Section 85 of Article 5 of the Code, 1951 Ed., to provide that if any party plaintiff or defendant shall die either before or after judgment or decree, '* * * the heir, executor, administrator or other proper person may, if he thinks proper, suggest, the death and become a party in the place of such deceased party and pray an appeal or writ of error, * * *; provided such appeal or writ of error be prayed within the time prescribed in this article.'

Not only has there been express legislative recognition that the death of a party should not extend the time within which an appeal must be taken, by whomever in such case may be authorized to take it, but this Court has so held in Hopper v. Jones, 64 Md. 578, 4 A. 273. We think that the principle applied in the cases to which we have referred, dealing with appeals to this Court after death of a party, applies equally to the appeals allowed from the Accident Commission to the trial courts. In both instances the right to appeal is conferred only by statute. The jurisdiction of the trial courts, acting as appellate courts, depends to as great a degree, if not greater, as that of this Court, on due compliance by one named or contemplated by the governing statute with its provisions. In Holland Mfg. Co. v. Thomas, 136 Md. 77, 110 A. 209, the appeal was taken thirty-one days after the order complained of. Despite this, the lower court reversed the order of the Commission. This Court decided that the language of what is now Section 57 of Article 101, requiring appeal within thirty days, was mandatory and positive, and held that the court had no jurisdiction, and that its judgment was a mere nullity and must be reversed. See also Brenner v. Brenner, 127 Md. 189, 96 A. 287, and Miller v. Bethlehem Steel Co., 160 Md. 657, 154 A. 555. We assume for the purpose of this case, there being no necessity to decide it, that the widow or the administratrix of Isadore Switkes, or both, could have appealed if they had done so within thirty days of the order of the Accident Commission. Cambridge Mfg. Co. v. Johnson, 160 Md. 248, 153 A. 283; Moller Motor Car Co. v. Unger, 166 Md. 198, 170 A. 777; Bramble v. Shields, 146 Md. 494, 127 A. 44. They did not so appeal, and Switkes could not, even through the use of his name by his lawyers.

The appellant relies on Bramble v. Shields, supra. There, the appeal was taken from an order of the Industrial Accident Commission in the name of William Shields, by his attorneys. A motion to dismiss was filed on the ground that Shields was insane at the time the appeal was taken. Thereafter, an amended petition was filed in the names of Shields and his wife, as wife and next friend. This Court refused to dismiss the appeal. There are two reasons, at least, why the case is not controlling. First, the ground of decision in this Court was that no exception was taken and no bill of exception was filed, so that the ruling of the Court was held to be not open to review. Second, in Alexander v. Rose, 181 Md. 447, 30 A.2d 785, Judge Adams pointed out that an insane person, even though adjudicated, which Shields had not been, was not only a proper but a necessary party in suits for and against him, and under this rule, an insane person, rendered so by an accidental injury, would seem to be a 'person aggrieved' under Section 57. Compare Wainwright v. Wilkinson, 62 Md. 146, where in a suit originally brought by her prochein ami, an infant employed an attorney and then asked him to dismiss the suit, which he did. This Court held that the motion to dismiss was a nullity because the infant was incapable of employing the attorney, and the employment being nugatory, the attorney was unauthorized and the dismissal was simply void. See State v. Heath, 18 N.J.Misc. 471, 15 A.2d 92.

If it be considered that the lawyers were acting on their own, rather than acting for their deceased client, the position of the appellants would not be improved. Ordinarily, an attorney acting for himself cannot take an appeal from an order or judgment which affects the interests of his client. In National Park Bank v. Lanahan, 60 Md. 477, 515, the lawyer for an attaching creditor, who was challenging the deed of trust made for the benefit of creditors, filed a petition in his own name as 'attorney and counsellor of the Circuit Court of the United States, for the Fourth District, in and for the Maryland District', in which he charged that by service of an injunction upon him, his client being a non-resident an illegal attempt had been made to restrain him as an attorney of the United States Court, and through him, his client, from receiving their just rights. He suggested to the Court that since his client could not be made a party, and since his appearance and answer might submit him to...