Eddy v. Summers

• Decision Date: 16 November 1944
• Docket Number: 41.
• Parties: EDDY v. SUMMERS et al.
• Court: Maryland Court of Appeals

39 A.2d 812

183 Md. 683

EDDY v. SUMMERS et al.

No. 41.

Court of Appeals of Maryland

November 16, 1944

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

Suit by Ernest E. Summers and wife, to their own use and to the use of the Interstate Insurance Company, against John W. Eddy, to recover damages as result of an automobile collision. Judgment by default for plaintiffs, and, from an order sustaining a demurrer to defendant's motion to strike out the judgment, defendant appeals.

Affirmed.

Thomas Knox and Abraham A. Lights, both of Baltimore for appellant.

No appearance and no brief for appellees.

Before MARBURY, C.J., and DELAPLAINE, COLLINS GRASON, MELVIN, BAILEY, CAPPER, and HENDERSON, JJ.

BAILEY, Judge.

John W Eaddy, sometimes known as John W. Eddy, and Ernest E. Summers were respectively the drivers of two automobiles which collided on Biddle Street, near its intersection with Pennsylvania Avenue, in Baltimore City on February 6, 1943. Eddy's automobile was damaged to the extent of $282.45 while the damage to Summers' automobile was estimated at $403. On March 29, 1943, Eddy, to his own use and to the use of the National Guild Insurance Company, filed suit against Summers in the Baltimore City Court. Summers was duly summoned and served with a copy of the declaration. Upon his failure to appear and file pleas and upon proper motion of the plaintiff, judgment by default was entered against him on June 10, 1943. On June 15, he was served with notice that damages would be assessed. On September 29, the Judge, under the authority of Sec. 91, Art. 75, Annotated Code, as amended by Chapter 843 of the Acts of 1943, assessed the damages at $282.45 and judgment was entered against the defendant, upon this inquisition, for said amount and costs of suit.

Meanwhile, on June 22, 1943, Summers and his wife, to their own use and to the use of the Interstate Insurance Company, filed in the Superior Court of Baltimore City a suit to recover from Eddy the estimated damages to the automobile belonging to Summers and his wife. Eddy was duly summoned but failed to appear and file pleas in this action. Thereupon, on October 14, 1943, judgment by default was entered against him. No further action was taken in this case until March 13, 1944, when Eddy filed a motion to strike out the judgment by default entered against him on October 14, 1943. The motion first alleges that the judgment entered in the Baltimore City Court on September 29, 1943, was res judicata of the subject matter of the instant suit and then states that Eddy 'does not deny that he was summoned in this suit but he says that he thought that all papers or notices received pertained to the same suit which he had pending and did not understand that a cross-action was filed against him; that he has not been notified that judgment by default had been taken, or would be taken, against him in this case; that he has just learned two days before the date set for inquisition that judgment by default had been taken against him; that while he does not deny being served with a copy of the declaration in this case, he says that he has received no further summons or notice whatsoever in this case and that he believed that the whole matter was concluded by judgment as aforesaid.' The motion was verified by his affidavit.

The plaintiffs demurred to the motion to strike out the judgment. The appeal in this case is from the order of court entered on March 24, 1944, sustaining the plaintiffs' demurrer and dismissing the defendant's motion.

We know of no rule of pleading or practice which authorizes the filing of a demurrer to a motion to strike out a judgment. In Poe's Pleading and Practice, Tiffany's Edition, Vol. 2, sec. 394, the practice is discussed in detail. It is there stated that when the reasons assigned for striking out a judgment depend upon extrinsic facts of matters not apparent from the record, the motion should be verified by the affidavit of the party making it, or some one on his behalf, and the affidavits of other parties may also be filed; that due notice must be given and the motion set down for hearing; that counter-affidavits may be filed by the opposite party; or that testimony may be taken by either party in the usual way, upon due notice, according to the rules of the Court, before one of the standing commissioners, or any other commissioner whom the parties may agree on, or even in open court, if the court shall so determine. Merrick v. B. & O. R. R. Co., 33 Md. 481; Johnson v. Phillips, 143 Md. 16, 122 A. 7. While this Court has held that a judgment will not be stricken out upon the mere ex parte affidavit of the defendant, taken without notice to the party against whom it is to be used (Foran v. Johnson, 58 Md. 144; Geesey v. Stouch, 94 Md. 75, 50 A. 422), it is the practice to decide the question either on affidavits or on testimony. Johnson v. Phillips, supra. In the instant case the action of the plaintiffs in demurring to the motion can be considered only as an admission of the truth of the facts alleged in the motion and sworn to by the defendant and as evidence of the willingness of the plaintiffs to submit the question upon the affidavit of the defendant, without filing counter-affidavits or testimony in contradiction of the facts alleged in the motion. Considering that the question was so presented to the trial court, it is our duty to determine whether the Court erred in dismissing the defendant's motion and in refusing to strike out the judgment by default entered against him.

Courts retain absolute control over their judgments during the term at which they are entered and during that time have inherent power to strike them out. In passing upon applications to strike out judgments, when such applications are made at the same term at which the judgments are entered, our Courts usually act liberally; and upon reasonable proof of merit and other equitable circumstances, strike out the judgments and let the defendant in to be heard. Malone v. Topfer, 125 Md. 157, 163, 93 A. 397, Ann.Cas.1916E, 1272. In lieu of the term of court, during which the Court retains control over its judgments under its inherent common-law power, the period of thirty days has been...