Kartman v. Miliman

• Decision Date: 17 January 1924
• Parties: KARTMAN v. MILIMAN ET UX.
• Court: Maryland Court of Appeals

125 A. 170

144 Md. 502

KARTMAN v. MILIMAN ET UX.

Court of Appeals of Maryland

January 17, 1924

Appeal from Circuit Court of Baltimore City; Duffy, Judge.

Suit by Morris Miliman and wife against Jacob Kartman. Decree for complainants, and defendant appeals. Affirmed.

Argued before BOYD, C.J., and BRISCOE, THOMAS, PATTISON, URNER ADKINS, and OFFUTT, JJ.

Herbert Levy, of Baltimore, for appellant.

David Ash, of Baltimore (Dave B. Kirsner, of Baltimore, on the brief), for appellees.

OFFUTT J.

On November 18, 1919, Bessie Miliman, Morris Miliman, and Jacob Kartman, as joint makers, executed to the Belford Building & Loan Association, a body corporate, four promissory notes under seal, each for the sum of $100, and each payable as to both principal and interest in weekly installments of $2 on the principal and 12 cents on account of interest. The four notes were all alike in their terms, and each contained the following power, authorizing a confession of judgment for such amount as might be due on them in the event of a default:

"In case of default in any of the weekly payments herein provided for, and the said note is collected by suit or through attorney, we promise to pay an additional fee of five dollars as collection fees, and we empower any person for us and as the attorney for each of us, to appear before any justice of the peace of the state of Maryland, or any court thereof, in any suit instituted to recover the amount due on said shares and to confess judgment in favor of the said body corporate, and against each of us for such amount as the president or other officer of said body corporate will swear is then due on said note or on said share, * * * and we each of us do also waive every right of exemption that we now have or may hereafter have, whether it be under the laws of Maryland or under the laws of any other forum."

The notes being in default, suit was brought on each of them before a magistrate in Baltimore city on or about the 8th day of January, 1923, and on that day M. Henry Goldstone, as attorney and agent for the plaintiff, appeared before the magistrate and made oath that there was due on each note the entire principal sum of $100, whereupon judgment for that amount was entered by the magistrate in each case against the appellees in favor of the appellant. The judgments were recorded in the superior court of Baltimore city, and on or about March 1, 1923, Jacob Kartman, to whose use the judgments had been entered, instituted supplementary proceedings on them in that court for the purpose of inquiring into the credits and resources of the judgment debtors, Bessie and Morris Miliman, and on that day it was ordered by that court that they bring in a list of their accounts and credits and all books and papers used by them in their business transactions. On March 3d, two days later, Mr and Mrs. Miliman filed the bill of complaint in this case, in which they alleged that the promissory notes upon which the judgments had been obtained had been paid, and that the judgments were obtained without their knowledge or consent through the fraud of the equitable plaintiff, and that they had had no opportunity of defending the suits, and in which they asked that the execution of the judgments be enjoined. An answer was filed denying those allegations, and testimony in connection with the issues thus made taken orally in the circuit court of Baltimore city, and at its conclusion the court by its decree enjoined the appellant from further prosecuting the suits or executing on the judgments, but reserving to Jacob Kartman the right to institute any proper action for the recovery of any moneys due him by the appellees or either of them, and from that decree the judgment creditors have taken this appeal.

The first question with which we are called upon to deal is whether the magistrate, at the time he entered the judgments to which we have referred had acquired jurisdiction of the persons of the appellees. If he had not, then obviously the judgments were nullities, and the lower court was empowered to enjoin the appellants from executing on them.

The evidence shows: (1) That neither of the appellees had been summoned or notified of the pendency of the suits until after the judgments had been entered, and that neither of them had prior to that time appeared in proper person before the magistrate; (2) that no one "confessed judgment" before the magistrate against the appellees in any one of the suits, and (3) that no officer of the building...