Cook v. Alexandria Nat. Bank, 22

• Decision Date: 15 October 1971
• Docket Number: No. 22,22
• Citation: 282 A.2d 97,263 Md. 147
• Parties: Ernest COCK et ux. v. ALEXANDRIA NATIONAL BANK.
• Court: Maryland Court of Appeals

Page 147

263 Md. 147

282 A.2d 97

Ernest COCK et ux. v. ALEXANDRIA NATIONAL BANK.

No. 22.

Court of Appeals of Maryland.

Oct. 15, 1971.

'If a judgment is confessed by an attorney in fact, it shall be the duty of the clerk within ten days from the entry thereof to cause to be served upon the judgment debtor a certified copy of the order * * *. The failure to serve a copy of such order within sixty days from the date of entry thereof shall render such judgment void as to any debtor not so served. Service of a copy of such order on a nonresident judgment debtor * * * by the clerk of the court sending a copy of such order by registered mail to such nonresident judgment debtor at his last known postoffice address and the filing of a certificate with the papers in the case showing that such has been done or of a receipt showing the receipt of such registered letter by such nonresident judgment debtor, shall be deemed sufficient service thereof for the purposes of this section.' (Emphasis added.)

The bank, thereupon, without opposition from the appellants sought and obtained leave to amend its declaration to add a second special count setting forth the underlying debt.

The litigants filed cross motions for summary judgment and since there are no factual disputes as to the question of the debt, lack of repayment, or failure of proper notice, it is clear that one of these motions should be granted. Maryland Rule 610 d 1. The Cooks base their appeal, though unpersuasively, on the contention that the trial court granted the wrong motion.

The appellants initially assert that they have legal defenses to this action sufficient to prevent a judgment, based on either the Virginia litigation or the underlying debt, from being entered against them. They point out that under the explicit provision of the statute (Virginia Code, § 8-362) the Virginia judgment is void and therefore suit to enforce it cannot be maintained in any jurisdiction. Not surprisingly there is no disagreement with this statement by either the trial court or the appellee bank. However, the Cooks after apparently starting out on the right path, stumble in pursuit of their dubious goal. They next reason that since the bank instituted this Maryland suit to enforce a void judgment, not only can they not enforce it, but by even filing such a claim in Maryland the appellee has made an irrevocable election of remedies. This election, they contend, completely forecloses any right appellee might have had to prosecute the action on the original obligation. This argument is vacuous for it is clear even to the casual observer that under Maryland Rule 313 te bank had every right to pursue claims independently or alternatively in the same cause of action. It is of course true that in the event of a conflict the appellee may be required to select which of the alternative methods to follow to final judgment and a valid judgment, following such an election, will bar recovery on any other theory in subsequent proceedings.

The decisions of this court have recognized this modern trend in the rules of pleading and we have adopted the proposition that an irrevocable election is not made until after a final valid judgment. The mere initiation of a suit, prior to its becoming a final valid judgment, does not constitute an election which would bar either an amended claim from being filed in the same action or a totally different remedy in an independent action. City of Baltimore v. Landay, 258 Md. 568, 267 A.2d 156 (1970); Pemrock, Inc. v. Essco Co., 252 Md. 374, 249 A.2d 711 (1969); Keefauver v. Richardson, 233 Md. 545, 551, 197 A.2d 438 (1964); Levin v. Singer, 227 Md. 47, 60-61, 175 A.2d 423 (1964); State Roads Comm. v. Smith, 224 Md. 537, 168 A.2d 705 (1961); Perdue v. Brittingham, 186 Md. 393, 401, 47 A.2d 491 (1946).

Appellants' next contention is that under the doctrines of merger and res judicata and the bank's effort to obtain a new judgment must fail. They argue that since the Virginia judgment was valid when recorded and for sixty days thereafter, the original cause of action was literally merged into and extinguished by that judgment so as to make it res judicata to this entire Maryland action, when the final judgment became void. This nugatory claim ignores the plain and simple fact that the Virginia judgment, for the first sixty days, was not final but rather a tenative judgment which could have been reprieved from the statutory death sentence by the clerk of the court giving the defendants notice of its recording. Failure to perform this ministerial duty rendered the judgment null and void by mandate of that same statute which says: 'The failure to serve a copy of such order * * * shall render such judgment void as to any debtor not so served. * * *' § 8-362.

The authorities seem to be in harmony in holding a void judgment is a mere nullity and ineffective for any purpose. Its status is the same as if it had never been entered. This point is succinctly summed up in 46 Am.Jur.2d, Judgments, § 49 (1969) where it is said:

'A void judgment is not entitled to the respect accorded to, and is attended by none of the consequences of, valid adjudication. Indeed, a void judgment need not be recognized by anyone, but may be entirely disregarded or declared inoperative by any tribunal in which effect is sought to be given to it. It has no legal or binding force or efficacy for any purpose or at any place. It cannot affect, impair, or create rights, nor can any rights be based thereon.

Although it is not necessary to take any steps to have a void judgment reversed or vacated, it is open to attack or impeachment in any proceeding, direct or collateral, and at any time or place, at least where the invalidity appears upon the face of the record. It is not entitled to enforcement and is, ordinarily, no protection to those who seek to enforce it. All proceedings founded on the void judgment are themselves regarded as invalid and ineffective for any purpose.

In short, a void judgment is regarded as a nullity, and the situation is the same as it would be if there were no judgment. It accordingly leaves the parties litigant in the same position they were in before the trial.'

See in addition 49 C.J.S. Judgments...