Kemp v. Cook

• Decision Date: 16 December 1861
• Parties: LEWIS KEMP, Surviving Partner of KEMP AND BUCKEY, v. LARKIN S. COOK AND HIRAM RIDGELY.
• Court: Maryland Court of Appeals

18 Md. 130

LEWIS KEMP, Surviving Partner of KEMP AND BUCKEY, v. LARKIN S. COOK AND HIRAM RIDGELY.

Court of Appeals of Maryland.

December 16, 1861

Where a judgment was rendered against an infant, who appeared by attorney, and he, though knowing of its existence, and how it was obtained, took no steps to avoid it until six years after he attained age, such delay amounts to laches, so as to deprive him of relief under the Act of 1787, ch. 9, sec. 6, even if otherwise his infancy could be taken advantage of, as against the judgment, by summary proceeding, on motion, under that Act.

A writ of error coram nobis lies to correct an error in fact, in the same court where the record is, as where the defendant, being under age, appeared by attorney, and judgment was rendered against him; and this writ is still applicable in this State.

The Act of 1787, ch. 9, sec. 6, gives no additional powers to the court, in regard to correcting or setting aside judgments but assumes the power to be in the court, and directs that when a judgment is set aside for any of the reasons therein stated, the case shall be brought up by the entry of regular continuances.

The power of setting aside judgments on motion, is a common law power incident to courts of record, and is usually exercised under restraints imposed by their own rules, and rarely after the term has passed in which the judgment was rendered.

If an infant forms a partnership with an adult, he holds himself out to the world as not being an infant; he practices a fraud upon the world.

A judgment against an infant is not void, but voidable; the tendency of the courts is rather to sustain than vacate the acts of infants, unless they are obviously to their prejudice.

The judgment records of the State are the highest evidence of debt known to the law, and to permit them to be altered or amended without the most solemn forms of proceeding, would be contrary to law and good policy.

Judgments at law are not lightly to be interfered with, and a very strong case must be presented to induce this court to sanction the striking out of a judgment of many years standing.

In deciding upon an application to strike out a judgment, after the term has passed, for any of the reasons mentioned in the Act of 1787, ch. 9, sec. 6, the court acts in the exercise of its quasi equitable powers, and the applicant must appear to have acted bona fide and with ordinary diligence.

If a party has knowingly acquiesced in the judgment complained of or has been guilty of laches and unreasonable delay in seeking his remedy, relief will not be granted.

APPEAL from the Circuit Court for Frederick County.

Appeal from a judgment of the court below, (NELSON, J.,) striking out, on motion of the appellee Ridgely, a judgment recovered by the appellants against the appellees, and bringing up the case by regular continuances, and quashing a scire facias issued on said judgment. The facts of the case are fully stated in the opinion of this court. See also, 6 Md. Rep., 305.

The cause was argued before BOWIE, C. J., BARTOL and GOLDSBOROUGH, J.

Jos. M. Palmer for the appellant, argued for a reversal:

1st. Because if Ridgely ever had any remedy by reason of his infancy at the time the original judgment was rendered, it was by writ of error coram nobis, the court below having no authority to strike out that judgment upon motion and try a question of infancy. 2 Bl. Com., (by Chitty,) 320. 2 Tidd, 1056, 1066. 3 Steph. Pl., 140. 2 Saund. Rep., 101, a, note 1. Ibid., 101, s, note 4; and 212, note 4. Ev. Pr., 424, 426. 9 G. & J., 428, Hawkins vs. Bowie. McPherson on Infants, 359, 360. 1 Arch. Pr., 379. Cro. James, 250, Carre vs. Barker. 5 Barn. & Ald., 418, Bird vs. Pegg. 14 Johns. 417, Arnold vs. Sandford. 16 Wend. 49, Camp vs. Bennett. 2 Hill, 333, Cruikshank vs. Gardner. 1 Mass., 479, 480, Knapp vs. Crosby. 3 Md. Rep., 333, Bridendolph vs. Zellers. 2 Graham's Pr., 932, 964. 3 Bos. & Pull., 220, Wilkins vs. Wetherill. Bing. on Judgments, 40, 46. The Act of 1787, ch. 9, sec. 6, is not commensurate with the writ of error coram nobis.

2nd. Because the original judgment is so far merged in, incorporated and blended with, the supersedeas judgment, as not to be judicially separated from it. The confession of the supersedeas judgment is a waiver of all errors and irregularities in the original judgment. The only remedy against a supersedeas judgment, and that is only for error apparent on the face of the record, is by appeal under the Act of 1826, ch. 200, sec. 11. The supersedeas judgment was given by the Act of 1791, ch. 68, and by that Act the court could merely execute the judgment. The court cannot correct such judgment under the Act of 1787, ch. 9, sec. 6, because when that Act was passed there was no such judgment.

3rd. Because Ridgely has acquiesced so long, since he came of full age, in the original judgment. And if the original judgment be struck out, it must be struck out against both defendants. McPherson on Infants, 359. And if the original judgment be set aside, the supersedeas judgment must thereby be destroyed or rendered null. In view of these consequences, as the application of Ridgely is addressed to the equitable interposition of the court asking for a privilege and not a strict right, the court will regard the interest of those who are to be affected by the granting of the application.

4th. Because the decision of this court in 6 Md. Rep., 305, was conclusive of the question involved in this application to strike out the original judgment, and, therefore, imperative upon the court below. Because the scire facias was necessarily to revive both judgments incorporated in one, and no matter which might have been relied on as a defence to the original action, can be set up in answer to the scire facias.

5th. Because the court below refused the judgment of fiat, asked for by the appellant, and quashed the scire facias, and adjudged costs to the defendants in the scire facias.

Oliver Miller, for the appellee argued:

1st. That it is perfectly clear, upon all the authorities, that an infant defendant cannot appear by attorney, but must, in all cases where sued as defendant, appear by guardian. If he appears by attorney and judgment be rendered against him, it is error, and the judgment will be reversed. McPherson on Infants, 358 to 362. 16 Wend. 49, Camp vs. Bennett. 11 Johns. 460, Dewitt vs. Post. 2 Tidd, 1191.

2nd. The Court of Appeals in 6 Md. Rep., 307, having decided that the remedy of the appellee, if he has any, must be prosecuted in the original cause, the relief sought must be at law and not in equity, and by some proceeding in the original cause in which the judgment was rendered. It is insisted, on the other side, that the only remedy is by writ of error coram nobis. The cases cited by the appellant show clearly that in England, and in some of the States, the remedy could be had by error coram nobis, and the cases of Hawkins vs. Bowie, 9 G. & J., 428, and Bridendolph vs. Zellers, 3 Md. Rep., 325, show that this writ may be resorted to in Maryland, but these cases by no means show that this is the only remedy for such a case.

3rd. The remedy asked by the motion here, is to strike out the judgment and open the cause, so as to enable the defendant to plead his infancy, and to have the action brought up by regular continuances. This was granted, and the cause was ordered so to be brought up on the docket. If this judgment is affirmed, and the proceeding be decided to be proper, the case will stand open for a new trial, and the question of infancy will be tried before the jury, if denied by the plaintiff. The question of infancy vel non, will then be tried in the same manner as if issue thereon had been made upon the assignment of errors on a writ of error coram nobis. It is evidently a more simple, expeditious and safer remedy and proceeding for both parties. If he could have had relief upon the writ, there are no defences the plaintiff could have availed himself of on that writ which he cannot equally do on the new trial of the original action. It seems that the 6th sec. of the Act of 1787, ch. 9, was designed to meet just such a case. See also 2 H. & G., 379, State use of Sadler, vs. Cox.

4th. the objection in reference to the effect of the supersedeas judgment does not seem to be of any force. In the record, to which this court can only properly look in this case, the supersedeas judgment does not appear, and no relief, as against it, was given by the judgment appealed from. But if it did, it can make no difference, inasmuch as the same objection of infancy at the time of the supersedeas would apply as to the original judgment.

5th. That there is no reason why the relief should not be granted upon the ground of acquiescence, laches or neglect. The appellee, Ridgely, was but a surety in the note on which the judgment was recovered; payments were made on the judgment from time to time, and no attempt was made to execute it as against Ridgely until the issual of the scire facias on the 12th of February 1851, when steps were immediately taken by him to obtain relief.

OPINION

BOWIE, C. J.

This is an application to the Circuit court for Frederick county, made on the 11th of October 1855, to strike out a judgment of Frederick county court, rendered at February term 1842, to open said cause, and enable the appellee, Hiram Ridgely, one of the defendants, to plead infancy; and to cause the said action to be brought up by regular continuances.

The material facts exhibited by the records are these:

The appellants recovered a judgment, by confession, against the appellees, Cook and Ridgely, at February term 1842, in Frederick county court, for $376.63, on a joint and several...