Hamburger v. Standard Lime & Stone Co., s. 7

• Citation: 198 Md. 336,84 A.2d 74
• Decision Date: 31 October 1951
• Docket Number: Nos. 7,8,s. 7
• Parties: HAMBURGER v. STANDARD LIME & STONE CO. HAMBURGER v. AMERICAN BITUMULS CO.
• Court: Court of Appeals of Maryland

Page 336

198 Md. 336

84 A.2d 74

HAMBURGER v. STANDARD LIME & STONE CO.

HAMBURGER v. AMERICAN BITUMULS CO.

Nos. 7, 8.

Court of Appeals of Maryland.

Oct. 31, 1951.

Robert E. Clapp, Jr., Frederick (Louis J. Sagner, Baltimore, on the brief), for appellant.

Parsons Newman, Frederick, and Edmund P. Dandridge, Jr., Baltimore (Venable, Baetjer & Howard, Baltimore, on the brief), for Standard Lime & Stone Co. Alton Y. Bennett, Frederick, for American Bitumuls Co.

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

COLLINS, Judge.

Here are two appeals from refusals of the trial judge to strike out two judgments.

On March 27, 1948, each of the appellees filed a declaration, for materials furnished, against Ellsworth C. Valentine under the common counts, accompanied by a motion for summary judgment, together with notice of motion and an affidavit with vouchers attached. The defendant was summoned in each case and having failed to appear and answer within the required time, the motion for summary judgment was granted in each case and judgments entered on April 21, 1948, for the sums set out in the respective affidavits.

The appellant, as trustee in bankruptcy of Ellsworth C. Valentine, on January 3, 1950, after it is admitted that the judgments had become enrolled--Part 2, subd. VI. Revisory Power of Courts Over Final Judgments, Orders and Decrees, Rule 1, of the Rules of Practice and Procedure--and over twenty months after they had been entered, filed a motion in each case to strike out the judgment 'Because said judgment purports to have been entered under the General Rules of Practice and Procedure of the Court of Appeals of Maryland, relating to summary judgments, but the proceedings thereunder show on their face that there was no compliance with said rules, and said judgment is therefore void.' The appellant in each case claimed that the affidavit 'fails to comply with Part 2, subd. IV, Rules of Practice and Procedure, Summary Judgment, Rule 2,' because in one case it neither asserts nor shows that it was made on personal knowledge and both affidavits fail to present evidentiary facts upon which the claims are based.

It is a well-known principle of law in this State that an enrolled judgment, although obtained by default, if entered after the defendant was regularly summoned, will not be vacated by the courts unless it appears clearly that the defendant has a meritorious and substantial defense, and has not unreasonably delayed the filing of the motion and acquiesced in the judgment. 2 Poe, Pleading and Practice, 1925 Ed., secs. 388-396. Harvey v. Slacum, 181 Md. 206, 209, 29 A.2d 276. Eddy v. Summers, 183 Md. 683, 687, 688, 39 A.2d 812. There is nothing here to show appellant has a meritorious and substantial defense to the suits. As was stated by Judge Alvey in Loney v. Bailey, 43 Md. 10, 16, and frequently quoted since: 'To hold otherwise would go far to destroy all stability of the judgments of the courts.' The motions of the appellant do not meet these and other requirements necessary to strike out enrolled judgments. The appellant does not dispute these well-known principles of law. He contends, however, in this Court that because the affidavits to support the motions for summary judgments are defective, which question it is not necessary that we pass upon here, although the court had jurisdiction over the person and subject matter of the suits and the defendant was regularly summoned and failed to answer within the required time, the trial court was without jurisdiction to enter the judgments. With this contention of the appellant we do not agree.

In the case of Lambros v. Brown, 184 Md. 350, 41 A.2d 78, the subject of jurisdiction was recently fully discussed by this Court. Berlinsky v. Eisenberg, 190 Md. 636, 638, 59 A.2d 327. Lambros v. Brown, supra, involved appeals to this Court from judgments entered against the appellant in the Baltimore City Court, heard there on appeals from the People's Court of...