Dowell v. O'Brien

• Decision Date: 08 February 1952
• Docket Number: No. 95,95
• Citation: 199 Md. 299,86 A.2d 462
• Parties: DOWELL et al v. O'BRIEN et al.
• Court: Maryland Court of Appeals

Page 299

199 Md. 299

86 A.2d 462

DOWELL et al v. O'BRIEN et al.

No. 95.

Court of Appeals of Maryland.

Feb. 8, 1952.

J. Wilmer Johnson, Prince Frederick, for appellants.

Wm. Meverell Loker, W. M. Loker, Jr., both of Leonardtown, and David A. Harkness, Prince Frederick, for appellees.

Before MARBURY, C. J., and DELAPLAINE, COLLINS, HENDERSON and MARKELL, JJ.

MARKELL, Judge.

This is an appeal from a summary judgment in an action on a confessed judgment note. Defendants moved to set aside a judgment by confession for two reasons, one that the note 'was given for promotion of a gambling enterprise which is against public policy, and renders said note void'. In a supporting affidavit defendants said that a building was to be constructed by defendants for use of plaintiffs 'for the purpose of operation of a house for gambling, * * * tht such enterprise was unlawful and against public policy'. Plaintiffs demurred to the motion, the demurrer was overruled and the judgment was opened for trial and the lien preserved. Defendants filed the general issue pleas and later a 'set-off and counter-claim' for $4,000, expended by defendant, over and above $1,000 advanced by plaintiffs, on construction; it was alleged that plaintiffs were to advance all money necessary to complete the construction to plaintiffs' specifications, defendants were to lease the place constructed to plaintiffs and to repay advances out of rent, defendants began construction, plaintiffs went into possession and later abandoned possession, and defendants had no profitable use for the premises. Plaintiffs demurred to the 'set-off and counter-claim'. The case was removed from Calvert County to Prince George's County. Before the confessed judgment was opened plaintiffs filed a motion for summary judgment, upon which no action was taken. After removal plaintiffs filed another motion for summary judgment, to which defendants filed a 'demurrer'. The demurrer was overruled and the motion granted. No affidavits were filed in support of or in opposition to the motion for summary judgment, but the affidavit on which the confessed judgment had been opened was in the record.

The proceedings in defense of this case are crude and informal. Whether, at the hearing on the motion for summary judgment, the affidavit in support of the motion to open the confessed judgment was ignored or was held inadequate, after it had been held sufficient to open the judgment, the record does not show. As the case was submitted on briefs, we had no opportunity to ask enlightenment by counsel. Summary judgment is not a formal, technical proceeding. We think the affidavit should not be ignored. Apparently counsel regard the allegations of fact in the affidavit and the unsworn 'set-off and counter-claim' as before this court, undisputed, and therefore as having been before the lower court. Plaintiffs say in their brief they 'believe that the status of the pleadings in the case is tantamount to a concession by all parties that the contract was a gambling contract. * * * It may well be that these parties are in pari delicto.' In both briefs the question of illegality of the contract is...