Bailey v. Bailey

• Decision Date: 11 February 1943
• Docket Number: 7.
• Citation: 30 A.2d 249,181 Md. 385
• Parties: BAILEY v. BAILEY.
• Court: Maryland Court of Appeals

30 A.2d 249

181 Md. 385

BAILEY v. BAILEY.

No. 7.

Court of Appeals of Maryland

February 11, 1943

Appeal from Circuit Court of Baltimore City; Emory H. Niles, Judge.

Bill for divorce by Ella Bailey against Shannon Bailey, wherein the words 'without prejudice' were inserted, after enrollment, in decree dismissing the bill of complaint whereupon defendant petitioned the court to strike the words from the decree. From an order dismissing his petition defendant appeals.

Affirmed.

Louis E. Macht, of Baltimore, for appellant.

No appearance and no brief filed for appellee, but J. Howard Payne, of Baltimore, appeared on the record.

Before SLOAN, DELAPLAINE, COLLINS, MARBURY, GRASON and MELVIN, JJ.

DELAPLAINE, Judge.

On October 3, 1941, a decree was signed by Judge J. Abner Sayler in the Circuit Court of Baltimore City, dismissing a bill of complaint filed by Ella Bailey praying for divorce and alimony from her husband, Shannon Bailey. The bill was dismissed withot any hearing on the mertis or argument of counsel. On January 12, 1942, Judge Sayler inserted the words 'without prejudice' in the decree. Bailey thereupon petitioned the court to strike these words from the decree. From an order dismissing his petition, he brings this appeal.

At an early day in England, when the courts possessed unrestricted power to make amendments to their records, they exercised the power so recklessly that the King issued this admonition to correct the abuse: 'Although we have granted to our Justices to make record of pleas pleaded before them, yet we will not that their own records shall be a warranty for their own wrong, nor that they may raze their rolls, nor amend them, nor record them contrary to their original enrollment.' Blackstone remarked that this declaration meant that the Justices could not, by their own private erasure, change a record already made up or alter the truth for any sinister purpose. 3 Blackstone's Commentaries 408; Wight v. Nicholson, 134 U.S. 136, 10 S.Ct. 487 489, 33 L.Ed. 865, 869. Even trivial clerical mistakes at common law were fatal to the pleader, and this strict rule applied to all proceedings after they became enrolled, for then the roll was the final record. However, the courts were given authority by the Statutes of Amendment ot amend clerical errors in judgments at any time. 1 Alexander's British Statutes, Coe's Ed., 229, 310, 315.

In Maryland it is well established that before a decree is enrolled, it is entirely subject to the control of the court, and may be revised or revoked on petition. Norris v. Ahles, 115 Md. 62, 80 A. 654. It was originally held that a decree of the Court of Chancery of this State was considered as enrolled at the expiration of the term during which the decree was entered. Burch v. Scott, 1 Gill. & J. 393, 426. But the rule was afterwards adopted in Maryland that all final decrees and orders in the nature of final decrees shall be considered as enrolled from and after the expiration of 30 days from the date of the same. Code, art. 16, sec. 207. The question raised by this appeal is whether Judge Sayler had the power to amend the decree after it became enrolled. It is a general rule that a court of equity cannot revise or revoke a decree after it is enrolled, except upon bill of review for error apparent on the fact of the decree or for newly discovered evidence, or upon original bill for fraud. After a decree is clothed with the solemnity of enrollment, it must be allowed to stand for what it purports to be on its face, except for merely clerical or accidental errors, until it is revised or revoked in a more solemn and formal manner than can be done on petition. Thruston v. Devecmon, 30 Md. 210, 217; Rice v. Donald, 97 Md. 396, 400, 55 A. 620; George Long Contracting Co. v. Albert, 116 Md. 111, 114, 81 A. 265, Ann.Cas.1913B, 1259. But the general rule has three exceptions where the procedure may be by petition: (1) Where the case was not heard on its merits, (2) where the decree was entered by mistake or surprise, and (3) where the circumstances satisfy the court in the exercise of a sound discretion that the enrollment ought to be discharged and the decree set aside. Straus v. Rost, 67 Md. 465, 479, 10 A. 74; Foxwell v. Foxwell, 118 Md. 471, 84 A. 552; Foxwell v. Foxwell, 122 Md. 263, 273, 89 A. 494; Simms v. Simms, 178 Md. 350, 13 A.2d 326. In the instant case a bill of review or original bill was obviously unnecessary as the case was not heard on its merits.

The appellant relied on General Equity Rule 49, which provides 'Clerical mistakes in decrees or decretal orders, or errors arising from any accidental slip or omission, may, at any time before the enrollment of such decrees or orders, be corrected by order of the court or judge thereof upon petition, without the form or expense of a rehearing.' Code, art. 16, sec. 208. It was argued that since this rule authorizes the correction of clerical mistakes at any time before enrollment, the courts have no power to make any correction after enrollment. But we cannot hold that the Legislature, in enacting this rule, intended by implication to abridge the inherent power of courts of record to correct at any time clerical errors, deficiencies of form, inadvertent omissions or obvious mistakes in their records, as distinguished from judicial errors. In making such a correction, it is unnecessary to pass a new decree, for the court merely directs the clerk to produce the original decree so that the correction can be made in the presence of the court. Lovejoy v. Irelan, 19 Md. 56; Pfeaff v. Jones, 50 Md. 263, 269. As a court of equity has inherent power to correct errors in its records whereby they fail to express the truth in regard to its proceedings, it may amend a final decree after its enrollment by inserting words which were omitted by inadvertence or mistake and which are necessary to express the court's intention and give proper effect to the remedy intended to be given. This power was recognized by the Supreme Court of Illinois as follows: 'The court may, even after the expiration of the term at which a judgment was rendered, correct or amend the entry thereof so as to make it conform to the judgment which the court actually rendered. * * * Any amendments permissible under the statute of amendments and jeofails may be proper at a subsequent term, and this applies both to judgments at law and decrees in...