Doug-Dun Corp. v. Simms

Moore, J., delivered the opinion of the Court. The sole issue on this appeal is whether the Chancellor ³⁵¹ committed reversible error when he dismissed appellant’s bill of complaint for injunctive and other relief after a hearing on appellee’s motion ne recipiatur. The record does not contain any transcript of the proceedings below. The appeal is before us on appellant’s bill of complaint with attached exhibits, the motion ne recipiatur and objection thereto and the court’s “Memorandum of Opinion.” We glean from the bill of complaint and exhibits that appellant was a tenant of appellee, operating a restaurant business in Severna Park, Anne Arundel County.

Following extensive damage to the premises by fire, appellant and appellee entered into negotiations for the sale of the business, including a liquor license, and the leasing of the premises to a third party. These negotiations failed, however, and the landlord brought an action for summary ejectment in the District Court for Anne Arundel County and recovered a judgment on February 13, 1975 in the sum of $4500.00, representing rentals past due. No timely appeal from that judgment was made within the two-day period prescribed by § 8-401 (f), Annot. Code of Md., Real Prop.

Art. (1975 Cum. Supp.). On February 19, 1975, tenant-appellant’s counsel mailed to counsel for appellee an uncertified check in the amount of the judgment. This was, of course, an attempted exercise by the tenant-appellant of his right to redemption of the leased premises pursuant to § 8-401 (e) of the aforesaid Article which provides: “— the tenant shall have the right to redemption of the leased premises by tendering in cash, certified check or money order to the landlord or his agent all past due rent and late fees, plus all court awarded costs and fees, at any time before actual execution of the eviction order.” (Emphasis added.) Since the proffered payment did not comply with the above provisions the landlord-appellee exercised his rights of repossession of the premises by filing a petition for a ³⁵² Warrant of Restitution on February 17, 1975 and the •warrant was duly .filed and issued the same day.

Appellant’s bill of complaint alleged substantially the above facts and claimed that the repossession of the restaurant premises was unlawful. It sought an injunction against the landlord’s interference with the use and enjoyment of the premises as well as damages for trespass and for interference with and interruption of the restaurant business. The motion -ne recipiatur interposed by the landlord-appellee under Maryland Rule 322 asserted as •grounds for the motion that the judgment in the District Court of Maryland was res judicata and also that there was an adequate remedy at law. On June 17, 1975, 'after a hearing on the motion ne recipiatur held in open court on June 13, 1975, it was ordered that the motion ne recipiatur “is sustained and the bill of complaint is dismissed without leave to amend, with costs of suit to be paid by complainant.” In the memorandum which accompanied the Order, the Chancellor wrote: “The plaintiff, having failed to allege any facts which would bring himself within the purview of the statute, and having been evicted before complying with the payment provisions of the statute, it is difficult to see how this court could find a basis for equitable relief. “It follows, therefore, that the defendant’s motion should be granted and the bill of complaint dismissed with costs to the defendant.” It is apparent that the Chancellor disposed of the bill of complaint as if the case were before the court on a demurrer or a motion for summary judgment. 1 Maryland Rule 322 entitled, Motion Ne Recipiatur or to Strike, is as follows: “A motion that any pleading be not received ³⁵³ either because it is filed too late or is not properly verified, or for any other reason, as well as any motion to strike out any preceding, motion for any reason, may be made either by a motion ne recipiatur or by a motion to strike, or both.” In a footnote to a discussion of motions ne recipiatur the editor of Poe’s Pleading and Practice poses the question: “Since under Rule 322 the motion may be filed because a pleading is too late, improperly verified ‘or for any other reason,’ may such a motion be filed to raise the legal sufficiency