Bolotin v. Selis

• Court: Maryland Supreme Court
• Writing for the Court: Before BRUNE; HENDERSON
• Citation: Bolotin v. Selis, 129 A.2d 130, 212 Md. 239 (Md. 1957)
• Decision Date: 12 February 1957
• Docket Number: No. 93,93
• Parties: I. Irwin BOLOTIN v. Leopold SELIS.

Page 239

212 Md. 239

129 A.2d 130

I. Irwin BOLOTIN v. Leopold SELIS.

No. 93.

Court of Appeals of Maryland.

Feb. 12, 1957.

Submitted on brief by I. Irwin Bolotin, Washington, D. C., in pro. per., for appellant.

Submitted on brief by Stanley B. Frosh, Silver Spring, and Arthur L. Willcher, Washington, D. C., for appellee.

Before BRUNE, C. J., and COLLINS, HENDERSON, HAMMOND and PRESCOTT, JJ.

HENDERSON, Judge.

A judgment by confession was entered in this case and, on motion, the trial court passed an order declining to strike it out after hearing. The appellant contends that this was error.

The facts are meager but undisputed. The appellant and Augustus Selis executed two promissory notes dated August 1, 1955, and September 9, 1955, each payable 90 days after date to the order of The National Metropolitan Bank of Washington, containing an authorization for any attorney of any court of record to appear for the makers and confess judgment for such amounts as may be due and unpaid. Both notes were endorsed by Leopold Selis and subsequently paid by him at the Bank. He filed his declaration, affidavit of merit and the two notes, in the Circuit Court for Montgomery County, on December 21, 1955, and judgment was entered on the same date. A writ of summons was served upon the appellant, who filed his motion to strike on January 19, 1956, 'appearing specially' for the purpose. The grounds of the motion were that the defendant 'is not now and never was indebted to the plaintiff as alleged', that 'this defendant never promised to pay the plaintiff as alleged', and that 'this defendant signed the promissory notes, * * * solely for the accommodation of the plaintiff, and his son Augustus Selis, * * *.' The motion also prayed leave to file pleas. An affidavit was attached to the motion stating that 'the matters and things set forth therein are true in substance and fact.' It does not appear that any evidence was offered in support of the motion at the hearing.

The Rules of Practice and Procedure, Part Three, subd. II, Rule 1(b) (designated as Rule 645, subd. b in the Revised Rules effective January 1, 1957), provides, in part, that a defendant, upon receipt of summons, may show cause within thirty days 'why the judgment should be vacated, opened, or modified', and that 'any application', so made, shall be promptly heard, 'and such action taken as the court may deem just.' In Foland v. Hoffman, 186 Md. 423, 431, 47 A.2d 62, 66, it was said: 'This rule requiring a defendant to be summoned and show cause within thirty days from service upon him of a nisi order why the judgment should be vacated, opened, or modified, did not change the existing practice in such cases. It provided a means to inform the judgment debtor of the judgment, and afforded him an opportunity to move that it be vacated, opened, or modified. He should file a motion under oath, setting out fully all the facts and circumstances tending to show that the judgment should be stricken out, * * *. Upon proper proof, the court will so order. For a full treatment of the proper practice see Keiner v. Commerce Trust Co., supra, 154 Md. at pages 370, 371, 141 A. 121 * * *.'

In the Keiner case it was said, 154 Md. at page 370, 141 A. at page 123, that '* * * although such a motion 'must be supported by satisfactory proof of conditions which make such action necessary to serve the ends of justice' (Wisner v. Reeside, 139 Md. 223, 114 A. 912), the court in dealing with it 'should be very careful to see that no improper advantage has been taken of the maker * * *'.' Again it was said, 154 Md. at page 371, 141 A. at page 123, that it must be shown 'that there are substantial and sufficient grounds for an actual controversy as to the merits of the case * * *.' Cf. Anders v. Devries, 26 Md. 222. In Vane v. Stanley Heating Co., 160 Md. 24, 152 A. 511, not only was there a full and explicit statement of the defense, but testimony was taken at length in open court. In Johnson v. Phillips, 143 Md. 16, 21, 122 A. 7, 8, it was said that although a judgment ought not to be stricken out on the mere ex parte affidavit of the defendant, 'under our practice it...