Tydings v. Allied Painting & Decorating Co.

POWERS, J., delivered the opinion of the Court. This appeal by Clifton Richard Tydings, appellant here, comes from the Circuit Court for Anne Arundel County, and was taken from an order entered by Judge W. Harvey Beardmore on May 4, 1971, denying a motion to rescind an order to dismiss. The case began in the circuit court with the filing on October 14, 1970, by Allied Painting & Decorating Co., Employer, and Liberty Mutual Insurance Company, Insurer, appellees here, of an Order for Appeal and a Petition of Appeal from an order of the Workmen’s Compensation Commission awarding compensation to Tydings on his claim that he sustained an accidental injury in the course of his employment. In this appeal, we are not called upon to deal with the merits of the claim or with any aspect of the Workmen’s Compensation law, but with the procedural course of the case in the Circuit Court for Anne Arundel County.

It will be necessary to recite the procedural steps in detail. Interrogatories directed to appellant were filed by appellees on November 16, 1970. It appears that the case was scheduled for trial on February-17, 1971. On February 16th appellees filed a motion for postponement, agreed to by appellant, and the case was continued to the March term, and set for trial on April 15th.

No answers to the interrogatories had been filed at that time. Appellant says in his brief that he “was unable to prepare the answers to these interrogatories as he was undergoing medical tests which required hospitalization.” We were told at argument that appellant entered the hospital late in February. The record contains no explanation of why the answers had not been filed between mid-November and late February. Counsel for appellees wrote counsel for appellant on February 2, 1971, “a friendly reminder that you have not answered ⁴³⁵ Interrogatories”.

On February 24th, counsel for appellees wrote counsel for appellant: “Trial in the above case has been scheduled for April 15, 1971, and it is highly unlikely that any postponement will be granted. I shall expect by return mail the long overdue answers to our interrogatories. Failing to receive them in time to prepare for the case, I shall be obliged to move under the Maryland Rules for appropriate relief.” On March 23, 1971, appellees filed a motion to dismiss for failure to answer interrogatories. Opposition to that motion was filed by appellant on March 29th.

In it he stated that answers would be delivered by April 2, 1971. By letter dated March 31st addressed to the clerk, with a copy to appellant’s counsel, appellees’ counsel wrote that receipt of answers on April 2nd would be insufficient to permit adequate preparation for trial on April 15th, and asked that the clerk “ask the court to promptly decide my motion to dismiss”. Judge Beardmore wrote a “Memo to file”, 4/5/71: “I telephoned Mr. Gerel. Not in, so spoke to his secretary, Lorraine Mitchell, who said that answers (by copy — not original) sent out already.

Told her they’d have to be in opposing counsel’s hands by 10 tomorrow morning, or action would be taken on Motion to Dismiss.” At 1:00 P.M. on April 6th, 1971, Judge Beardmore signed an order “that the decision of the Workmen’s Compensation Commission be reversed and that claimant’s claim be disallowed.” A copy was mailed the same day to appellant’s counsel. The record shows that at 11:03 A.M. on April 7, 1971, the clerk filed appellant’s answers to interrogatories, which- contained a certification that they were subscribed and sworn to before a notary public of Anne Arundel County, Maryland, on March 29, 1971. Anomalously, there was appended to ⁴³⁶ the answers a certificate of service, signed by appellant’s counsel, certifying that a copy was