Corkran v. Zoning Commissioner
Corkran v. Zoning Commissioner
Opinion of the Court
delivered the opinion of the Court.
“[T]he privilege of bringing every law to the test of the constitution [both federal and State] belongs to the humblest ■citizen, who owes no obedience to any legislative act, which transcends the constitutional limits.”
The appellants’ nar was met by a motion raising preliminary objection, Md. Rule 323 a (10).
The Maryland Uniform Declaratory Judgments Act, now codified in Courts and Judicial Proceedings Article §§ 3-401 to 3-415, inclusive, states its legislative purpose in section 3-402 thereof. That section provides that the act is remedial in nature. “Its purpose is to settle and afford relief from uncertainty and insecurity with respect to rights, status, and other legal relations. It shall be liberally construed and administered.” Courts Art. § 3-402. The Court of Appeals, in Himes v. Day, 254 Md. 197, 206, 254 A. 2d 181, 186 (1969), speaking through the late Judge Finan, said, “We think Judge
The case of Glorius v. Watkins, 203 Md. 546, 102 A. 2d 274 (1954) makes manifest that “[i]f the proceeding is of a legal nature, it does not become equitable when cast in the form of a demand for a declaratory decree; just as a remedy purely legal cannot be sought in an equity court merely by invoking .. .'[The Declaratory Judgment Act].” Put more graphically, “a wolf in sheep’s clothing”
The appellee contends that the appellants asked for “a permanent injunction, which is not ancillary relief and within the authority of the law court.” We have previously pointed out that the use of the adjective “permanent” by the appellants in their declaration was obviously an incorrect usage of the word. Nevertheless, on its face, the declaration could not have meant that the requested injunction be permanent in nature, because in the same sentence, the appellants made clear that the sought after “temporary and permanent” injunction would have a short life. When the trial court ruled on the constitutionality of the ordinance, the so-called “temporary and permanent” injunction would expire. Ergo, irrespective of the manner in which appellants characterized the requested injunction, the injunction, if issued, would be no more than temporary, and temporary
The declaration was properly brought in the law court, as that court had jurisdiction to declare the relief requested, and it possessed the ancillary authority to enjoin temporarily the enforcement of Ordinance No. 18-76. We think the circuit court erred in dismissing the declaration. Even if the circuit court had not erred in its preliminary motion ruling, we would still be hard pressed to hold that the judge was correct in dismissing the appellants’ suit. The reason that we would find such a holding difficult is found in Md. Rule 515 a, which provides in pertinent part:
“Where it shall appear that the plaintiff is or may be entitled to some relief or remedy, but not in the particular court, or on the side of the court in which the action is brought or the relief is prayed, the plaintiff shall not on that account be nonsuited or the action dismissed; but the action shall be transferred by an order to such proper court or docket, either of equity or law, in the same county, as the nature thereof may require, or, if the action is within the exclusive jurisdiction of the District Court then to the District Court sitting in the same county and upon such terms as to the payment of costs as the court may order.”
The rule permits a trial court to transfer the case to the proper side of the court, if it has been instituted on the incorrect side. The court may take such action on motion by the plaintiff or on its own initiative. The rule places the utmost importance on preventing a plaintiff who appears to be entitled to some relief, from being denied that relief simply
We believe the motion raising preliminary objection on the ground of lack of subject matter jurisdiction to have been improperly granted.
Order granting motion raising preliminary objection and dismissing appellants' declaration is vacated.
Case is remanded for further proceedings.
Costs to be paid by Baltimore County.
. Joseph Story, Address to the Suffolk Bar, September 4, 1821 in The Miscellaneous Writings of Joseph Story (Boston: James Munroe and Company, 1835) p. 428.
. The appellants are: Raymond C. Corkran and Maurice Robbins t/a Northpoint Terminals, Kenneth W. Branamen and Pearl Branamen, Russell Siegel, Eugene A. Davidson, Louis Petrovia, and Ernest D. Shiflett.
. “Lack of jurisdiction over the subject matter.”
. The adjective “permanent” is defined to mean: “1. Fixed and changeless; lasting or meant to last indefinitely. 2. Not expected to change in status, condition, or place____” The American Heritage Dictionary of the English Language (1970).
. Judge O’Donnell later served on the Court of Appeals from April 29, 1974 until his death on April 2, 1976.
. Aesop, c 550 B.C., The Wolf in Sheep’s Clothing.
. Md. Rule BF40 provides that “[i]n an action at law a party either in his original pleading or at any time after the commencement of the action ... may claim ... that.. . a[nl . .'. injunction ... be issued.” :Md. Rule BF40 a. If, however, the case is at issue, “a claim for a writ of injunction ... shall be filed only after obtaining leave of court.” Md. Rule BF40 b.
Reference
- Full Case Name
- RAYMOND C. CORKRAN, etc. v. ZONING COMMISSIONER FOR BALTIMORE COUNTY
- Cited By
- 1 case
- Status
- Published