Fahey v. Mottu

• Decision Date: 21 June 1887
• Parties: FAHEY v. MOTTU.
• Court: Maryland Court of Appeals

10 A. 68

67 Md. 250

FAHEY v. MOTTU.

Court of Appeals of Maryland

June 21, 1887

Appeal from court of common pleas, Baltimore city.

BRYAN J., dissenting.

Justices of the Peace 129(4)

Judgments rendered by justices of the peace will not be allowed to stand where the record fails to show affirmatively that a summons had been issued and served upon defendant. Such defect may be called in question even in a collateral action founded upon such judgments; as in an action of ejectment where defendant seeks to rest his title upon alleged sales made under executions issued under such judgments.

James McColgan, for appellant.

John H. Handy, for appellee.

YELLOTT J.

This appeal is from a judgment in an action of ejectment instituted in the court of common pleas of Baltimore city by the appellant, against the appellee, for the recovery of a lot of ground situate at the northwest corner of Oregon and Clay streets in said city. As shown by the record this property was, by a deed dated July 11, 1879, and duly recorded, conveyed by the appellant to one Michael Kelly. The same property was afterwards, by a deed dated March 8, 1886, conveyed by Kelly to the appellant; but anterior to this last-mentioned conveyance two judgments had been rendered by a justice of the peace in suit brought by James H. Wilson against said Kelly, and on these judgments executions had been issued. Under these executions the property was sold on the thirteenth of February, 1884, to one Charles A. Price, who, having received a deed from the constable, conveyed said property, by deed dated the thirteenth day of April, 1885, to Theodore Mottu, the appellee.

If the judgments and subsequent proceedings thereunder were valid, it would seem that the title of the defendant rests on a solid foundation. The questions to be determined, therefore, relate to the validity of these proceedings, including the judgments rendered by the justice of the peace. The parties having elected to try the cause without the intervention of a jury, and having adduced all their evidence, the appellant asked the court to rule "that the papers offered in evidence in this case by the defendant are insufficient to show title in him, because it does not appear, from the proceedings in the case of J. H. Wilson v. Michael Kelly, that the defendant, Michael Kelly, was summoned, or that any summons was issued against him in said cause, and because there is no such return by the justice to the superior court as required by law, and therefore the verdict must be for the plaintiff. Second, that the levy of the constable in said cause is insufficient to authorize the sale of the lot or parcel of ground described in this case, and therefore the verdict must be for the plaintiff."

Upon an examination of the record, we find nothing to show that a summons in either case had ever been issued against Michael Kelly. It does not appear that the said Kelly knew of any suits having been brought against him at the time when these judgments were rendered. The proceedings before the justice of the peace who rendered the judgments, and all that was subsequently done, including the report of sale made by the constable, as well as the final ratification by the superior court, appear in the record. These proceedings show that the defendant failed to appear in either case, and that on the days he failed to appear judgments were rendered against him. But no summons seems ever to have been issued. The fact of the issuance of a summons in either case does not appear on the face of the proceedings. No court can render a judgment against a party who has not been summoned; and it is an elementary principle that, when the court rendering the judgment is one of...