Stoewer v. Porcelain Enamel & Manufacturing Co.

Henderson, J., delivered the opinion of the Court. The appeal in this case is from an order of the Circuit Court of Baltimore City passed on May 25, 1951, dismissing a bill of complaint without prejudice. The order for appeal, filed June 21, 1951, also purports to appeal from an order “passed on November 8, 1950 striking the plaintiff’s amended bill of complaint from the record”. If we assume that the previous order was a final one, the appeal was obviously not in time.

If not final, we can consider it only to the extent that its validity can be challenged by the appeal from the order of dismissal. The original bill was filed on October 19, 1939. It recited that the complainant owned a house and lot and operated a boarding house adjacent to the plant of the Porcelain Enamel and Manufacturing Co., a body corporate; that the defendant was polluting the air with noxious hydrofluoric gas, which seriously interferred with her comfort and damaged her business and property; that the wrongs were continuous and a nuisance, for which she had no adequate remedy at law. She prayed for an injunction and other and further relief.

The defendant appeared and filed an answer. No further action was taken in the case until June 6, 1950, when the appearance of the complainant’s present counsel ¹⁴⁹ was entered, and a petition to take testimony filed. On June 12, 1950, the respondent filed a petition reciting that in January, 1950, the plaintiff had instituted an action at law in the Baltimore City Court against the defendant for damages due to the operation of the plant over a period of three years prior to that date, with a claim for injunction. The petition set up the pending action at law as a bar and also alleged laches in the prosecution of the suit in equity.

It concluded with a motion to strike out the order setting the case for trial, and to dismiss the case “for want of prosecution and because of the pendency of the suit in the Baltimore City Court”. The complainant filed an answer to this petition, but it does not appear that any action was taken thereon. On October 2, 1950 the complainant filed a petition reciting that she had been prevented from pressing her suit because of the war, in which the defendant “was engaged in the manufacture of war products”, and because she had a dispute with her former counsel and was not aware that he had filed suit. She recited that she had now dismissed the action at law, and sought leave to file an amended bill of complaint.

An order was signed on the same day authorizing her to do so, and on that day she filed an amended bill of complaint repeating verbatim the allegations of the original bill, except that she alleged that the name of the defendant corporation “has been changed to Perneo Corporation since the filing of the original bill”. She prayed an injunction and other and further relief. An order directed the defendant “The Porcelain Enamel and Manufacturing Co. of Baltimore, also known as The Perneo Corporation”, to show cause. On October 16, 1950, the defendant filed a motion to strike out the amended bill after submission on briefs, or, in the alternative, a demurrer to the amended bill.

An order was signed on November 8, 1950, striking the amended bill. On May 15, 1951, the defendant filed a petition and motion to dismiss the original bill on the ¹⁵⁰ ground of laches and want of prosecution. This petition was sworn to by “Richard H. Turk, President of the Pemco Corporation, successor to Porcelain Enamel and Manufacturing Co. of Baltimore”. After answer and hearing the court, on May 25, 1951, dismissed the bill of complaint without prejudice. .

So far as the order of November 8, 1950 is concerned, it has been held that the right to permit amendments is wholly discretionary with the Chancellor, and an order allowing or disallowing amendment is not appealable. Engle v. Fidelity and Guaranty Co., 175 Md. 174, 184 , 200 A. 827 ; Kernan v. Carter, 132 Md. 577 , 104 A. 530 ; Miller’s Equity Procedure, § 182. On the other hand, in Funkhouser v. Mooers, 179 Md. 266, 269 , 18 A. 2d 205 ,