Passmore v. Harrison

¹⁴⁵ Powers, J., delivered the opinion of the Court. In the absence of a better explanation in the record, we can but conclude that it was indifference, ineptness, carelessness, or all of them, which precluded a determination of the merits of this paternity petition in the Circuit Court for Prince George’s County. The court record began on 22 July 1970 with the filing of a petition to establish paternity, signed by Mary Lucinda Passmore as petitioner and bearing the names of the State’s Attorney and an Assistant State’s Attorney as her attorneys. An oath of indigency was also filed.

In her petition Miss Passmore alleged that she was the mother of illegitimate twin boys born out of wedlock on 25 June 1970. She further alleged that the children were conceived on or about 12 November 1969, and that Michael Lawrence Harrison was the father. Returns of the sheriff show that on 5 August 1970 subpoenas and copies of the papers were served on Harrison, a minor, and on his parents. Next in the record was a line filed on 14 September 1970 directing the clerk to mark the cause “Dismissed without prejudice”.

The line was signed with the name of the State’s Attorney and approved by a circuit judge. It was not signed by Miss Passmore, nor did it contain any indication that a copy had been or was to be sent to her or to Harrison. The record remained closed for almost 21 months. On 9 June 1972 a brief petition was filed by an Assistant State’s Attorney asking the court to strike the line “dismiss without prejudice”.

The only reason given was that “the defendant is now at the above address where he may be served”. An ex parte order was entered by the court that the line be stricken and the petition be re-issued. No notice of the petition to strike or of the order appears to have been given to anyone. New subpoenas were issued, and were served, with copies of the 1970 petition, on Harrison and his parents.

Harrison filed no answer, but did appear and sign a waiver of a jury trial. Upon the case as it was then thought to have been revived, ¹⁴⁶ a hearing was held before Judge James H. Taylor. The transcript shows that Judge Taylor found Harrison to be the father of the children, and determined an amount of money he should be required to pay for their support. Before a decree was signed, Harrison, through counsel, filed a petition for rehearing.

On behalf of Miss Passmore, an Assistant State’s Attorney filed an answer. At a hearing on the petition and answer Judge Taylor granted a rehearing on all the issues of the case, and granted Harrison 15 days within which to file an initial pleading. Harrison filed a demurrer to the original petition and a motion to strike it. Both were argued before Judge Samuel W. H. Meloy, who granted both and dismissed the action on the ground of lack of jurisdiction.

Over the names of the State’s Attorney and an Assistant State’s Attorney as solicitors for the petitioner, a notice of appeal was filed on behalf of Miss Passmore. The appeal brings before this Court only the correctness of the order dismissing the case; not the merits as they appear in the transcript of the testimony taken before Judge Taylor. We must affirm the decree of the circuit court. When the case was dismissed by the filing of an .order to the clerk, signed by the petitioner’s counsel of record, it was at an end.

Two cases decided by the Court of Appeals, almost 100 years apart, support this view. Price v. Taylor, 21 Md. 356 (1864) arose from issues in a will caveat case sent by the Orphans’ Court of Baltimore City to the Superior Court, whence it was removed to the Circuit Court for Baltimore County. There the caveator filed an order to the clerk, “please enter this case dismissed”. Two and one half years later she filed a petition to take the paper writing from the file, saying that she revoked it.

Upon hearing, the circuit judge granted leave to withdraw the paper, and struck out the entry of dismissal. In reversing, the Court of Appeals said, at 365: “The rule on that subject, as stated in Evans Pr. 264, is, that a plaintiff may discontinue at any time by a