Tydon v. Spong

Hammond, J., delivered the opinion of the Court. This appeal is from the action of the Circuit Court for Garrett County in restoring to the trial docket a damage suit which, under Rule D of the Rules of Court of the Fourth Judicial Circuit of Maryland, had been removed therefrom after it had remained untried for four successive terms of court and had not been reinstated by either party before the beginning of the fourth term next after it had been removed. Rule D provides that, in such circumstances, “* * * said cause shall be considered as non prossed, unless enjoined or under rule reference, or awaiting the decision of other cases involving similar questions * * The case, which originally was brought in Washington County, had been removed to Allegany County at the suggestion of the plaintiff and then, on the suggestion of the defendant, to Garrett County, where it was placed on the docket of the circuit court for that County on October 24, 1961. It was continued at the December 1961 term of court and at the March, June and September terms of 1962.

On motion of the defendant the case was marked “stet” on December 3, 1962, as Rule D permitted. The case remained in that posture for the next four ¹⁰⁹ ensuing terms. The clerk of the Circuit Court for Garrett County, bypassing local counsel, notified the Washington County lawyer for the plaintiff by letter dated January 23, 1963, that the case had been marked “stet” and that he should take the steps necessary to have the case put back on the trial docket, if he so wished. It appears that during the fall of 1963 counsel for the plaintiff and defendant in Garrett County were negotiating in an effort to settle the case and, if these efforts failed, to select a mutually convenient date for trial, and that in February 1964 local counsel for the plaintiff was informed that the original lawyer for the defendant in Washington County intended to oppose the reinstatement of the case to the trial docket.

A petition seeking such reinstatement was filed by the plaintiff, by both original and local counsel, which was countered by an answer which relied on Rule D to sustain the right to have the case remain, under Rule D, as non prossed. Judge Hamill heard a presentation of facts and a discussion of the applicable authorities, and thereupon ordered the case to be put again upon the trial docket. The appellee, plaintiff below, has moved to dismiss the appeal on the grounds, first, that the order appealed from was interlocutory and so not reviewable on appeal until final judgment, and next, that Rule D, which was printed in the appendix of the appellant, was not authenticated as in force and effect by the judge who tried the case and, therefore, the Rule and its application are not before the Court of Appeals. It would seem to be established by Williams v. Snyder, Admr., 221 Md. 262, 267 , and the authorities therein relied on, that the defendant below had an immediate right of appeal to this Court from the action of the trial court in allowing an alleged cause of action, which would be subject to the plea of limitations if sought to be established by a new suit, to be rescued from interment as a case non prossed, and to be preserved for trial on the merits.

Rule D, on which the appellant, the defendant below, relies, was not put into evidence below, although obviously the trial judge could take judicial notice of the rules which had been duly promulgated to govern his court. ¹¹⁰ Counsel for the appellant, in designating the material to be included in the record on appeal, designated Rule D and no objection was made by counsel for the appellee. Indeed, the appellee does not now argue that the Rule was, or is not, in