Coulbourn v. Fleming

Decision Date16 November 1893
Citation27 A. 1041,78 Md. 210
CourtMaryland Court of Appeals

Appeal from circuit court, Kent county.

Action by Benjamin F. Fleming, for the use of Richard D. Hynson against William H. Coulbourn. From an order denying a motion to strike out a judgment by default, defendant appeals. Reversed.


Hope H Barroll, for appellant.

Richard D. Hynson, for appellee.


On the 27th day of April, 1892, a judgment was rendered in the circuit court for Kent county against William H. Coulbourn in favor of Benjamin F. Fleming. At the succeeding term of the court, on the 18th day of October, in the same year Coulbourn filed a motion to strike out the judgment. Coulbourn had been returned "summoned" in regular form, and judgment by default had been entered for want of appearance and plea, and afterwards made final in due course. The motion to strike out alleged that the judgment had been obtained by fraud, surprise, accident, or mistake; that the defendant had no knowledge of the existence of the suit in which it was obtained; that he had never been summoned to appear; and that he did not owe the plaintiff anything. The motion was heard orally on evidence offered in open court. It was proved by the sheriff and by his regular deputy, appointed and sworn, that neither of them had summoned the defendant, but that Joseph C. Rasin had been orally authorized and requested by the sheriff to make service, and that the return to the writ was made on Rasin's report that he had served it. Rasin had never been sworn as a deputy. The defendant testified that he was a citizen of Delaware, where he had always lived; that he had never resided in the state of Maryland, except for about six weeks in the fall of 1891, when he was engaged in the canning business near Still Pond, in Kent county; that during that time he had never been summoned by the sheriff of Kent county, nor by any one else, in any cause where Fleming or any one else was plaintiff; that he does not owe Fleming a dollar, and that he has a good defense to the claim filed in this cause; that he never heard of this judgment, or of any claim of Fleming, until the 1st day of October, 1892, when a writ was served on him by the sheriff of Sussex county, Del.; that he appeared to the suit on the meeting of the court, and ascertained that the suit was brought on a copy of the judgment in this case. He further testified that on the 17th of October, 1892, he learned for the first time that it was stated that the deputy sheriff of Kent county had left the summons in this case with Joseph C. Rasin, of Still Pond, for the purpose of being served on the defendant; that Rasin never served any summons on him, and had never said a word to him about any summons of any character; that on the same day he went to Still Pond with Mr. Barroll, his counsel; that Rasin then and there, in the presence of the defendant and Mr. Barroll, stated that he had never served the writ of summons on the defendant, and gave as a reason for not doing so that he held him in too high esteem, and thought too much of him, to serve the summons on him; and that Rasin repeatedly stated in the same conversation that, on the word of a gentleman, he knew that he had never served the writ on the defendant, nor informed him of its existence. Rasin also gave his testimony. He admitted that the defendant's account of the conversation with him and Mr. Barroll was correct, but said that since the conversation he had talked with Cecil C. Morgan, the deputy sheriff, and that Morgan had recalled to his recollection the fact that, when he returned the writ to him he had stated that he had served it on the defendant; that at the time of giving his testimony he distinctly recollected that he had so served it; and that the only explanation he could give of his conversation with defendant was that at the time he did not remember that he had served the writ, but that he remembered it the next morning, which was the time he was giving his testimony in court.

The judgment is in all respects regular in form, and must stand and be effective, to all intents and purposes, unless annulled and vacated by the authority of the court, exerted in the due and established course of proceeding. While judgments must not be interfered with except for strong and convincing reasons, yet, if sufficient cause is clearly shown, the courts will not hesitate to set them aside. In this case it is alleged that the defendant was not summoned, and that he has been condemned without a...

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