Henderson v. Gibson

Decision Date05 December 1862
Citation19 Md. 234
CourtMaryland Court of Appeals

A judgment by default, by the lapse of the term at which it was entered, without motion or other proceeding had thereon becomes final and absolute; and from an order striking out such judgment, an appeal will lie to this Court, but must be taken within three years after the right of appeal accrued.

Whether or not, within the limit of three years, the error in striking out the judgment could have been set up as a reason for reversing a judgment obtained upon a trial of issues subsequently joined, it is too late, after the lapse of more than three years, to present it for that purpose.

The plaintiffs, by their pleadings and joinder of issue subsequent to the order striking out the judgment by default waived their right of appeal from that order.

APPEAL from the Court of Common Pleas of the city of Baltimore.

This is a case of attachment sued out by the appellants against the appellee, at the May term, 1855, of the Court of Common Pleas of the city of Baltimore, on a judgment obtained by them at the May term, 1852, of said Court, against Elliott Johnson. The case is fully stated in the opinion of this Court.

The cause was argued before BARTOL, GOLDSBOROUGH and COCHRAN, J.

J Malcolm, for the appellants:

The Court below erred in striking out the judgment and allowing the garnishee to plead, the judgment having passed beyond the control of the Court, after the term had expired at which the judgment became final; and, according to the decisions of the Court of Appeals, the motion was too late. It should have been made at the term at which the judgment was entered, and, so far as the record shows, there was no motion made except a verbal one. No reasons being assigned for the motion, it was an arbitrary act of the Court, without any notice to the plaintiffs' counsel, and cannot be sustained on any principle of law. Sherwood vs. Mohler, 14 Md. Rep., 564. The garnishee has never yet filed a plea, as required by the order of the Court, and there is no rule of the Court of Common Pleas which authorizes " nulla bona " to be pleaded short, as was done in this case, and therefore the judgment should have been for the plaintiffs; for, by the rules of practice, all pleas are required to be in writing, and copies served on the counsel of the other side. Munnikuyson vs. Dorsett, 2 H. & G., 378. Ev. Pr., 429. The striking out of the judgment was directly in the face of the well-known and established practice of the Courts of this State. The motion to strike out should have been in writing, and served upon the opposing counsel.

John H. Thomas, for the appellee:

1st Courts have power, " for fraud, deceit, surprise or irregularity" in obtaining judgments, to set them aside, as well after as during the term at which they were rendered. The Act of 1787, ch. 9, sec. 6, provides for continuances from the term at which such judgments may have been rendered, until that at which they are set aside, showing that it is immaterial how many terms may have intervened. Hall vs. Sewell, 9 Gill, 146. Sherwood vs. Mohler, 14 Md. Rep., 564, 565.

2nd. The mode of showing the existence of such causes, is not designated by the Act. If, therefore, it appear from the record that some one of them must have existed, the action of the Court must be presumed to have been founded on them, and ought to be sustained. The Court " learned from the gentlemen in the cause" --the fact must have been conceded by counsel on both sides--that the appellee had no funds liable to condemnation. The answers of the garnishee, and the verdict of the jury, show conclusively that he had none. In the face of these facts, it is impossible to account for the judgment by default against him, except on one of the grounds which entitle the Court to set it aside.

3rd. If the point arose on motion to quash an execution, to reinstate the judgment, or on appeal from the order striking it out, in the absence of any other facts, it might be necessary to shew what proof was addressed to the Court below, as to the mode in which the judgment was obtained. But the Court can hardly be considered to have erred in striking out a judgment, when the record contains a verdict showing that no just cause for the rendition of it could, by possibility, have existed.

4th. The objection to the action of the Court might have been taken by the appellants, without going into the merits of the case. They chose to rely on the merits; mere technical rights were thereby waived. It is too late to rely on them after it is shown that they could not be conscientiously enforced. Kent vs. Holiday, 17 Md. Rep., 391. Evans vs. McGee, 11 Peters, 85.

5th. The point was not made in the Court below. The so-called bill of exceptions states that they excepted to the action of the Court before the jury retired. But the judgment had then been stricken out more than a year--not excepted to at the time it was done, as the record shows--and not brought to the attention of the Court afterwards, as it might have been, by a motion to reinstate the judgment. If the course pursued had not been considered equivalent to an agreement to try the case on its merits, an affidavit would have been filed. The want of it, however, is supplied by the verdict.

6th. Even if the Court erred, a procedendo ought not to be granted, as there was...

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4 cases
  • Murray v. Hurst
    • United States
    • Maryland Court of Appeals
    • November 30, 1932
    ... ... fraud, deceit, surprise, or irregularity. Green v ... Hamilton, 16 Md. 329, 77 Am. Dec. 295; Mailhouse v ... Inloes, 18 Md. 328, 333; Henderson & Ross v ... Gibson, 19 Md. 234, 238; Heffner v. Lynch, 21 ... Md. 552, 556; Hall v. Holmes, 30 Md. 558, 561; ... Cooper v. Roche, 36 Md. 563, ... ...
  • Armour Fertilizer Works, Division of Armour & Co. of Del. v. Brown
    • United States
    • Maryland Court of Appeals
    • November 28, 1945
    ...with the purpose for which Courts of Justice are created. Barabasz v. Kabat, 91 Md. 53, 58, 46 A. 337. In the case of Henderson v. Gibson, supra, 19 Md. 234, judgment by default was stricken out after the lapse of the term. As one of the grounds for holding that the appellants had waived th......
  • Associated Transport, Inc. v. Bonoumo
    • United States
    • Maryland Court of Appeals
    • November 11, 1948
    ...'undoubtedly had a right of appeal.' Armour Fertilizer Works v. Brown, supra, 185 Md. at page 278, 44 A.2d at page 755; Henderson v. Gibson, 19 Md. 234, 238. An refusing to strike out a judgment by default is always appealable. Eddy v. Summers, 183 Md. 683, 689, 39 A.2d 812; Poe, supra, § 3......
  • Ayers v. Anderson-Tully Co.
    • United States
    • Arkansas Supreme Court
    • January 11, 1909
    ...4434, 4435, Kirby's Digest; 52 Ark. 316. Such orders are appealable. 22 N.E. 930; 12 O. St. 136; 46 N.W. 201; 20 How. Pr. 439; 38 P. 710; 19 Md. 234. J. T. Coston and Murphy, Coleman & Lewis, for appellant. Appeal properly lies from the order of the chancery court setting the judgment aside......

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