Rudden v. Gro-Plant Industries, Inc.

McWilliams, J., delivered the opinion of the Court. The appellant (Rudden) urges us to set at naught an order of the trial judge, Gaboon, J., denying his motion to quash ¹⁷⁴ the writ of fieri facias issued upon the order of the appellee (Gro-Plant). Before we say why we shall affirm Judge Cahoon a curious set of facts must be related. On 18 June 1970 Gro-Plant filed, in the Circuit Court for Montgomery County, its declaration, affidavit, notice to plead and a motion for summary judgment against Rudden claiming $1,807.25.

The declaration is limited to two common counts — for goods bargained and sold and for money due on accounts stated between them. A detailed statement of the goods ordered on 2 July 1968 was attached. On 20 July Rudden submitted 13 interrogatories. Gro-Plant’s answers thereto revealed that it is a Florida corporation, that it was not registered to do business in Maryland and that in this regard it followed the advice of counsel.

Answering further it said Rudden gave its salesman an order for the merchandise on 2 July 1968, that the order was sent to its place of business in Florida for acceptance, that a list of the items ordered was sent to Rudden “as an acknowledgment” of its acceptance and that the merchandise was shipped on 23 March 1969. During the years 1968, 1969 and 1970, it continued, “any matters arising in Maryland” were handled by one salesman; it neither owns nor leases any real estate in Maryland; none of its officers or directors resides in Maryland; nor has it filed any tax returns in Maryland. Revenues from sales in Maryland do not exceed $100,000 annually which, it says, is less than ten per cent of its “entire annual volume.” The salesman who took the order lives in Florida. Gro-Plant’s reply to Rudden’s interrogatories was filed on 11 September 1970.

Judgment in favor of Gro-Plant was entered on 18 January 1972. During the intervening 16 months Rudden seems to have done nothing. We have combed the transcript in search of a demurrer, a plea, an affidavit of defense, or a defensive pleading of any kind. We have found nothing.

But on the very next day, 19 January, Rudden filed a motion to set aside the judgment. He gave as his “reasons therefor” that he had “one or more valid and material defenses to the merits” of Gro-Plant’s claim, that the Military Affidavit failed to show the competence and personal knowledge of the affiant, and that the motion for ¹⁷⁵ summary judgment “is dated . . . almost two years prior to the granting” thereof. Gro-Plant, in reply, declared that its attorney tried a number of times to communicate with Rudden’s attorney both by mail and by telephone. On only one occasion was he successful; Rudden’s attorney said he would communicate with his client. “After having exhausted every patient effort. . . [its] attorney submitted a request for summary judgment ... .” After a hearing before Judge Cahoon on 10 March 1972 Rudden’s motion was denied.

On 5 May 1972 Gro-Plant ordered the issuance of the writ of fieri facias. On 22 May Rudden moved to quash the writ on the grounds that Gro-Plant “is a foreign corporation” doing business in Maryland “without compliance with [the] requirements of [the] law . . . .” On the same day the court ordered the execution suspended “until this matter is heard and determined.” Rudden’s motion to quash came on for a hearing on 1 September. Judge Cahoon found “ . . . the res judicata argument [to be] persuasive . . . particularly because . . . [Rudden’s] motion is founded upon the facts that are in the interrogatories which were propounded and responded to sometime in 1970. ... It