U. O. Colson Co. v. Goff, 95

• Decision Date: 12 February 1954
• Docket Number: No. 95,95
• Citation: 102 A.2d 548,204 Md. 160
• Parties: U. O. COLSON CO. v. GOFF.
• Court: Maryland Court of Appeals

Page 160

204 Md. 160

102 A.2d 548

U. O. COLSON CO. v. GOFF.

No. 95.

Court of Appeals of Maryland.

Feb. 12, 1954.

Joseph H. Colvin, Baltimore, for appellant.

No brief and no appearance for appellee.

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

HAMMOND, Judge.

The issue to be passed on in this appeal is a very narrow one--may the Discovery Rules be used by a judgment creditor in lieu of supplementary proceedings to ascertain whether the judgment debtor has assets for the payment of the judgment? The court below, having originally directed the judgment debtor to answer interrogatories served upon him by the judgment creditor, reversed itself and ordered that the interrogatories not be allowed. The judgment creditor appeals on the ground that the court's action was not based on the exercise of discretion in the particular case, but on the flat holding that discovery never was available for use as a substitute for supplementary proceedings.

Under the General Rules of Practice and Procedure, part 2, subds. 1, 2, depositions for discovery may be taken in accordance with Deposition Rule 1 and Deposition Rules 3 to 12, inclusive, and Discovery Rule 3. Discovery also may be undertaken by interrogatories, directed to a party to the proceedings under Discovery Rules 2 and 3. The appellant makes these contentions. One is that nowhere in the Rules is there any prohibition of their use in the manner it desires. Next it says that in various places the rules speak of pending proceedings or permit action 'at any time' during the proceedings and that a proceeding is not terminated, and so is pending, until the judgment is paid. On this premise, it argues that the Rules may be used for any appropriate purpose until the judgment is paid. The difficulty with the proposition is that the authorities differ in their holdings as to when a proceeding is terminated. In some jurisdictions, proceedings are considered at an end when the judgment is rendered; in others, when the time for appeal is past, and in a third group, not until the judgment has been paid. We have been referred to no Maryland authority, nor do we find any, which indicates that the law of this State on the subject has been settled. This provides a foundation of sand for the argument that the framers of the Rules considered that the proceedings were to continue for the purpose of the rules until a judgment was satisfied.

There are several other persuasive indications that the Discovery Rules were not framed for use in place of supplementary proceedings. The notes of the Reporter to the Rules Committee, which bear on this aspect of the Rules, begin on page 2060 of the 1947 Cumulative Supplement of the Annotated Code of Maryland. He states that the Committee felt that the Maryland practice would be improved by effective means which would simplify proof of uncontested matters and inform each side of the facts relied on by the other for claim or defense. That discovery was to be used to prepare for trial, rather than after trial, is implicit in quotations from the authorities cited by the Reporter. On page 2065, for example, he quotes from the American Judicature Society in its draft Rules of Civil Procedure as follows: '* * * ample discovery before trial, under proper regulation, accomplishes one of the most necessary ends of modern procedure: it not only eliminates unessential issues from trials, thereby shortening trials considerably, but also requires parties to play the game with the cards on the table so that the possibility of fair settlement before trial is measurably...