Smith v. Montgomery County

Henderson, J., delivered the opinion of the Court. On December 8, 1959, the appellant was appointed a parking meter patrolwoman and assigned to the Montgomery County Police Department at Bethesda. She was on probation for one year, and her status was extended for another. On December 30, 1960, she was dismissed, upon recommendation of the Superintendent of Police and the County Manager, without written charges being filed or an opportunity for hearing by the Personnel Board.

On December 18, 1961, she filed suit for damages. Demurrer was sustained with leave to amend. She then filed a petition for mandamus to require the filing of charges and a hearing. Three days later she filed an amended declaration claiming damages for wrongful discharge and also for libel and slander.

The appellee filed an answer to the petition, and later filed a demurrer to the declaration after certain preliminary motions and demands for admissions had been disposed of. The petition for mandamus was denied on July 11, 1962, but the order sustaining the demurrer without leave to amend with not filed until ¹³⁶ April 30, 1963. The appeal from that order was entered on May 6, 1963. The appellee filed in this Court a motion to dismiss the appeal, on the ground that the appeal should have been from the denial of the petition for mandamus and that it was not taken in time.

We denied the motion, because we thought the appeal from the former order would have been premature.' It seems clear that the petition for mandamus, filed in the same proceeding as the claims for damages set out in the amended declaration, was ancillary to the other relief sought. See Maryland Rule BF40 a. Under Code (1957), Art. 75, sec. 72, a judgment refusing to issue a mandamus in actions at law (with certain exceptions not here relevant) was made “subject to the same right of appeal as other final judgments * * This and the other sections of that subtitle (sections 61-73 inclusive) were repealed by Chapter 36 of the Acts of 1962. We find nothing in the provisions of Art. 1, or 1A added by Chapter 36 of the Acts of 1962, to the contrary.

It follows, we think, that there is no longer an immediate appeal from the denial of ancillary relief by way of mandamus, but the question, of course, remains open on appeal from the final judgment in the case. We think the correctness of the ruling on the petition for. mandamus is still open, even though in her appeal to this Court the petitioner has abandoned her claims for damages and only maintains her right to notice and a hearing under the Montgomery County. Charter. Art. V, sec. 1 of the Charter, as adopted in 1948, provides: “b.

The county personnel board shall, subject to the approval of the county council * * *, adopt regulations not in conflict with this Charter, covering the classification of all positions in the executive and legislative branches * * *; salary and wage scales for any such position, probationary periods, promotions, and transfers; causes