Opinion
[No. 23, September Term, 1959.]
Decided October 16, 1959.
PLEADING — Payment Of Money Into Court And Acceptance — Effect. Where a complainant pays into court the total balance he alleged to be due on a loan made to him by the defendant-bank, the payment was in legal effect a tender, under Maryland Rule 325 a and its acceptance by the bank, under Rule 325 b 1, put an end to the controversy and terminated the only justiciable issue. p. 470
APPEAL — Time For Filing — Order Dismissing Petition To Have Person Made A Party — Dismissal Of Appeal For Failure To File In Time. Under Maryland Rule 812, the order for an appeal must be filed within thirty days from the date of judgment. In the instant case, where a petition to have the Bank Commissioner made a party was dismissed and an appeal from the order of dismissal was not filed until after the expiration of thirty days from the filing of the order, the appeal was dismissed. pp. 470-471
Decided October 16, 1959.
Appeal from the Circuit Court No. 2 of Baltimore City (WARNKEN, J.).
Bill in equity for a declaratory decree by Alexander B. Kloze against Provident Savings Bank of Baltimore and petition to have W.H. Kirkwood, Bank Commissioner, made a party. From an order that the sum paid into court by the complainant be applied to the payment of the claim of the Bank upon the complainant's note and from an order dismissing the petition to have the Bank Commissioner made a party, complainant appealed.
Order affirmed, with costs. Appeal dismissed, as to the appellee, Kirkwood, with costs.
The cause was argued before HENDERSON, HAMMOND, PRESCOTT and HORNEY, JJ.
Alexander P. Kloze, in proper person, for the appellant.
The Court declined to hear argument for the appellees.
Bradley T.J. Mettee, Jr., and James P. Garland were on the brief for Provident Savings Bank of Baltimore, one of the appellees.
C. Ferdinand Sybert, Attorney General, and Joseph S. Kaufman, Assistant Attorney General, were on the brief for W.H. Kirkwood, Bank Commissioner, State of Maryland, the other appellee.
This appeal is from an order directing that the sum of $1440.97, paid into court by the complainant, be applied to the payment and satisfaction of the claim of the Provident Savings Bank of Baltimore upon the complainant's note held by it, referred to in the bill for declaratory decree. The complainant, appellant, seeks to raise a number of points in connection with the note. He argues that the note is void, on the ground that the Bank had not obtained a license to operate under the "Maryland Industrial Finance Law," Code (1957), Art. 11, § 163, et seq., and that the interest and charges in the note exceeded those permitted by said article. We do not reach these questions. The payment into court by the complainant, of the "total balance" he alleged to be due on the loan, was in legal effect a tender, under Maryland Rule 325 a, and its acceptance by the Bank, under Rule 325 b 1, put an end to the controversy and terminated the only justiciable issue. Cf. Gamble v. Sentman, 68 Md. 71, 76, and Hodgson v. Phippin, 159 Md. 97, 100. See also Patuxent Oil Co. v. County Commissioners of Anne Arundel County, 212 Md. 543, 548.
The appellant also seeks to raise on this appeal the propriety of a previous order of court dismissing a petition of the complainant to have the appellee, the Bank Commissioner, made a party to the proceeding. This appellee filed a motion to dismiss the appeal as to him, on the ground that the order in question was final and appealable forthwith, and that hence the appeal from the subsequent order was not in time under Rule 812, and could not properly bring before us the correctness of the previous order. We think the point is well taken. See City of Baltimore v. Moore, 209 Md. 516, 523, and Northwestern Nat. Ins. Co. v. Samuel R. Rosoff, Ltd., 195 Md. 421, 433.
Order affirmed, with costs. Appeal dismissed, as to the appellee, Kirkwood, with costs.