Jordan v. Morgan, Admx.

McWileiams, J., delivered the opinion of the Court. On 14 March 1964, in St. Mary’s County, appellants Elmer Jordan and Irving Dyson, both infants, were passengers in a motor vehicle owned by appellee Frank Dyson and being operated by him in a northerly direction on Cherryfield Road near State Route 244. Appellants George Briscoe and Robert Morgan, infants also, were passengers 1 in a motor vehicle owned by the Reverend James E. Malloy and being operated (without authority it is claimed) by George Morgan in a southerly direction on Cherryfield Road. In the ensuing collision George Morgan was killed and all of the infant appellants were injured.

Frances Jane Morgan qualified as administratrix of the estate of George Morgan on 4 August 1964. The appellants filed suit against Frank Dyson, the administratrix (appellee), and Father Malloy on 2 March 1966. On 1 April 1966 appellee moved for a summary judgment on the ground that there was no genuine dispute as to any material fact and for the reason that the suit was not filed within six ³⁰⁷ calendar months of her qualification as administratrix, as required by Code, Art. 93, § 112. On 14 April appellants filed an “Answer to Motion for Summary Judgment” in which they admitted the fact that the suit was not filed within six months, as required by the statute, and in which, further answering, they stated there had been “negotiations and discussions pertaining to the possibilities of amicable settlement,” that the claim of one passenger had been settled within the six month period, that representatives of appellee “knew of the claim” of appellants and “were in no way prejudiced” by the late filing of the suit and that “another action had been previously filed * * * arising out of the same set of facts.” The “Answer” was not accompanied by a supporting affidavit.

On 22 April 1966, upon the suggestion and affidavit of appellants, the proceedings were sent to the Calvert County court for trial. The motion for summary judgment came on for a hearing before Bowen, J. on 4 August 1966. Appellants’ counsel, in opposition to the motion, contended that appellee had waived the requirements of the statute. When he sought to interject supporting testimony in his argument the court sustained appellee’s objection, saying: “Well, I can’t permit you to amend your Pleadings at this point.

Whatever facts you had to Plead in Answer to this Motion should have been included in this Answer, which takes the form of an Answer rather than an Affidavit as is required by the rules, but we are going to treat the thing as a proper Answer under the rules, even though technically it falls short. Your Adversaries haven’t seen fit to take any advantage of that technicality and we commend them for it. Therefore, we will treat it as a proper Answer or opposition to the Motion under the rules, but now for the life of me, I can’t see what connection the proper settlement within the period of the Statute has to do with this case. What the point is, the suit wasn’t filed within the period of limitations.” The record extract shows that after further colloquy between the court and counsel, the following transpired: ³⁰⁸ “(Judge Bowen) Accordingly gentlemen • — ■ what we propose to do is— “(Mr. Clagett) May it please the Court. “(Judge Bowen) Yes sir. “(Mr. Clagett) By reason of the fact that the Court is indicating that it might well permit