Merrimack Park Recreation Ass'n v. County Board of Appeals

MenciiinE, J., by special assignment, delivered the opinion of the Court. This is an appeal by Merrimack Park Recreation Association, Inc. (hereinafter called Merrimack) from an order of the Circuit Court for Montgomery County, dated August 16, 1961, dismissing Merrimack’s appeal from a decision of the Montgomery County Board of Appeals (hereinafter called Board) and from the further order of that court passed on September 26, 1961, affirming and refusing to rescind its first order of dismissal. Merrimack filed an appeal to the circuit court on May 26, 1961, from an order of the Board dated May 22, 1961. Also on May 26, 1961, Merrimack obtained an order of the Circuit Court for Montgomery County by which the time for filing its appeal petition and the transcript of record was extended to July 8, 1961.

On August 4, Board filed its motion to dismiss the appeal upon the grounds: (a) that Merrimack had neglected and failed to file the bond required as a condition of a stay of the Board’s order, and (b) that Merrimack had neglected and failed to file its petition upon appeal, contrary ¹⁸⁶ to Rule 1101 e of the Maryland Rules of Procedure. As to point (a) of Board’s motion to dismiss, there is nothing in the rule which provides that failure to file a bond to stay the effect of the administrative board’s order is a ground for dismissal of an appeal. On August 11, 1961, Merrimack filed its petition and on August 14, 1961, the transcript of record was filed. On August 17, 1961, the trial court dismissed the appeal.

On August 21, 1961, Merrimack filed a motion for rehearing, reconsideration and to set aside dismissal, and on September 15, 1961, the trial court suspended the operation of the order of dismissal nunc pro tunc to the date of its issue pending rehearing. On September 26, 1961, the trial court passed its order affirming and refusing to rescind its dismissal of Merrimack’s appeal. Rule 1101 (now subtitle B) of the Maryland Rules of Procedure controls the decision here. The appeal from the Board was within the time prescribed in Rule 1101 d 1.

(now B4 a). The subsections of Rule 1101 found by the trial court to have required dismissal are: 1101 b 5 (now B2 e) “The appellant shall join with his order for appeal, or shall file with the clerk of the court, within ten days after filing the order, a petition setting forth the action appealed from, the error committed by the agency in taking such action, and the relief sought, and shall serve a copy thereof on the agency.” 1101 e (now B5) “If the appellant shall fail to file his order for appeal within the time prescribed by section d of this Rule or any order issued pursuant thereto, or shall fail to file his petition within the time prescribed by section b 5 of this Rule, the court shall dismiss the appeal unless cause to the contrary be shown.” The record shows that counsel for Merrimack filed an affidavit in which he stated in part: (1) that prior to July 8, 1961 (the date to which an order of court had extended the ¹⁸⁷ time for filing its petition and the record) he had prepared a proposed order of court to further extend the time for filing its petition and the record and presented the same personally to the Board’s attorney for his consent thereon, so that it could be submitted to the court for its consideration and approval, and (2) that counsel for Board replied that there was no need to submit such an order but that counsel for Merrimack could have what time he needed so long as the required documents were filed a few days