Blake Construction Co. v. Stearman

Melvin, J., delivered the opinion of the Court. This case comes to this Court upon the grant of the plaintiffs' motion to suspend the operation of Maryland Rule 530 by the Circuit Court for Montgomery County (Shearin, J.). The case originated nearly five years ago, on 23 August ⁴³³ 1972, with the filing of a declaration by the plaintiffs (appellees) against the defendants (appellants), Dechard & McLaughlin, Inc., and Blake Construction Co., Inc., alleging damages resulting from negligence and breach of contract in connection with the installation of plumbing equipment in a multi-unit apartment building owned by the plaintiffs. The appellants, defendants below, contend that Judge Shearin abused his discretion by keeping the case alive.

The appellees, plaintiffs below, have filed with their brief a motion to dismiss the appeal as being premature. We agree with the appellees. Consequently, the appeal must be dismissed and we do not reach the issue raised by the appellants. The reason this appeal is premature is because the order appealed from is not a judgment, “which is so far final, as to settle and conclude the rights of the parties] involved in the action, or denying to the parties] the means of further prosecuting or defending the suit”.

See, Nu Car Carriers, Inc. v. Everett, 33 Md. App. 310 (1976) where we said, at 310, 311: “The Annotated Code of Maryland, Courts Article, § 12-301, provides in part that ‘ * * * a party may appeal from a final judgment entered in a civil * * * case by a circuit court/ The term ‘final judgment’ is defined in § 12-101 (f) to mean * * * a judgment, decree, sentence, order, determination, decision, or other action by a court, including an orphans’ court, from which an appeal, application for leave to appeal, or petition for certiorari may be taken.’ The apparent dilemma created by defining a phrase in terms of the thing being defined is explained by a Revisor’s Note under subsection (f). It says, ‘This definition does not attempt to specify what is an appealable final order. That is left to case law, as at present.’ “The case law has been consistent for well over 100 years. In Hazlehurst v. Morris, 28 Md. 67 (1868), the Court of Appeals said, at 71: ⁴³⁴ ‘The law has been clearly settled in this State, that ‘no appeal can be prosecuted to this court until a decision has been had in the court below, which is so far final, as to settle and conclude the rights of the party involved in the action, or denying to the party the means of further prosecuting or defending the suit.

When the proceedings below shall be terminated, an appeal will then lie, and all the errors of the court below, in the progress of the cause, will' be proper subjects for complaint of the party, and for the correction of this court.' Boteler v. State, 7 G. & J. 112 ; Welsh v. Davis, 7 Gill. 366; Green v. Hamilton, 16 Md. 328 . The order, passed in the court below, did not settle and conclude the rights involved in the cause; nor was it of such a character as to deny to the party 'the means of defending the suit, and was not, therefore, so far final as to be a proper subject of appeal. This appeal must, therefore, be dismissed.' ” “In Brooks v. Ford Motor Credit Co., 261 Md. 278 , 274 A. 2d 345 (1971), the Court of Appeals said, at 280: ‘We have consistently held that appeals will lie only from final judgments which settle the rights of the parties or conclude the cause, Tvardek v. Tvardek, 257 Md, 88, 261 A. 2d 762 (1970); Hillyard Constr. Co. v. Lynch, 256 Md. 375 , 260