Harvey v. Slacum

• Decision Date: 07 December 1942
• Docket Number: 3.
• Citation: 29 A.2d 276,181 Md. 206
• Parties: HARVEY v. SLACUM et ux.
• Court: Maryland Court of Appeals

29 A.2d 276

181 Md. 206

HARVEY v. SLACUM et ux.

No. 3.

Court of Appeals of Maryland

December 7, 1942

Appeal from Baltimore City Court; Joseph N. Ulman, Judge.

Action by William H. Harvey, Jr., a minor, by his father and next friend, William H. Harvey, against William J. Slacum, also Known as John W. Slacum, and wife for personal injuries. From an order striking out a default judgment and inquisition thereon, plaintiff appeals.

Affirmed in part and reversed in part, and case remanded for modification of order.

Hewlett B. Cox and Michael J. Manley, both of Baltimore (Harley, Wheltle & Manley, of Baltimore, on the brief), for appellant.

Foster H. Fanseen and Philip S. Ball, both of Baltimore, for appellees.

Argued before BOND, C.J. and SLOAN, JOHNSON, DELAPLAINE, COLLINS FORSYTHE, MARBURY, and GRASON, JJ.

DELAPLAINE Judge.

This suit was brought by William H. Harvey, Jr., in the Baltimore City Court on June 25, 1941, alleging that while riding on his bicycle on a public highway he was struck and injured by an automobile truck owned by William J. Slacum and Alva Slacum, his wife, the defendants, and negligently operated by their agent and employee. The plaintiff claimed $10,000 damages. On August 13, judgment by default was entered against the defendants for failure to appear and plead. On September 24, a jury of inquisition assessed the damages sustained by the plaintiff at $10,000. On September 26, judgment was extended for that amount, with interest and costs.

On January 28, 1942, the defendants moved that the judgment be stricken out for the reason that they had never been summoned to appear in this case. At the hearing on the motion, the defendants swore that the truck was used by their son, Clyde Slacum, in the trucking business, and they denied that they had any interest in the business, or that the driver was their agent or employee. The Court, while overruling the motion in so far as it sought to quash the return of the summons, nevertheless struck out the judgment by default and the inquisition thereon, but retained the lien of the judgment pending the conclusion of the case, with leave to the defendants to plead to the merits. The plaintiff is appealing from that order.

It is held at common law that the 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. When a defendant moves to strike out a judgment during the term at which it is entered, the application is within the sound discretion of the Court, and if the Court strikes out the judgment no appeal will lie. Townshend v Chew, 31 Md. 247; State v. Butler, 72 Md. 98, 18 A. 1105; Malone v. Topfer, 125 Md. 157, 163, 93 A. 397. In lieu of the ordinary term within which a judgment at common law remains under the control of the court, the period of 30 days has been substituted in the law courts of Baltimore City by local law enacted by the Legislature; consequently a judgment by default entered in one of those courts becomes enrolled at the end of 30 days after the entry of the judgment by default. Acts of 1886, ch. 184; Charter of Baltimore City, 1938 Ed., sec. 412; Preston v. McCann, 77 Md. 30, 25 A. 687; Wagner v. Scurlock, 166 Md. 284, 170 A. 539.

After the term at which a judgment is entered (or after the period of 30 days in Baltimore City), the judgment is enrolled and it should not be disturbed except after the most careful consideration of the facts and circumstances of the case. For obvious reasons the law presumes that a judgment is the final settlement of all matters in dispute in a particular case. It is thus held in this State that the Court should not set aside an enrolled judgment except where it has been shown by clear and convincing proof that the judgment was obtained by fraud, surprise, mistake or irregularity. 'To hold otherwise,' as Judge Alvey said in upholding this rule, 'would go far to destroy all stability of the judgments of the Courts.' Loney v. Bailey, 43 Md. 10, 16. In passing v. such a motion, the trial Court considers the equities and determines whether the motion is supported by evidence of circumstances which require that the judgment be set aside in order that the ends of justice would be subserved. Abell v. Simon, 49 Md. 318; Foran v. Johnson, 58 Md. 144; Girard Fire & Marine Insurance Co. v. Bankard, 107 Md. 538, 542, 69 A. 415; Wisner v. Reeside, 139 Md. 221, 114 A. 911; Denton National Bank v. Lynch, 155 Md. 333, 142 A. 103.

When a motion is made to vacate an enrolled judgment, even if obtained by default, the Court considers all the facts with great circumspection, and if it is found that the defendant was regularly summoned, the Court should not vacate the judgment unless it clearly appears that the defendant has acted with ordinary diligence, and has a meritorious and substantial defense, and has not acquiesced in the judgment or unreasonably delaryed the filing of the motion. Anderson v. Graff, 41 Md. 601, 608; Craig v. Wroth, 47 Md. 281; Waters v. Engle, 53 Md. 179; Murray v. Hurst, 163 Md. 481, 163 A. 183, 85 A.L.R. 442; Dixon v. Baltimore American Insurance Co. of New York, 171 Md. 695, 188 A. 215; 2 Poe, Pleading and Practice, secs. 388-396. For example, in Pumpian v. E. L. Rice & Co., 135 Md. 364, 109 A. 71, where a judgment by default was recovered, the Court properly refused to set it aside after it had become enrolled, because the defendant did not show that he had not been summoned or that he had any meritorious defense.

In the present case, however, both defendants swore positively that they had never been summoned, and did not know until January 1942, that judgment had been recovered against them. It is an elementary principle that no valid proceeding can be had against a person until he has been notified of the proceeding by proper...