Little v. Miller, No. 268

• Court: Court of Appeals of Maryland
• Writing for the Court: Before BRUNE; BRUNE
• Citation: 220 Md. 309,153 A.2d 271
• Parties: James LITTLE v. Robert H. MILLER, Jr., to own use and use and benefit, Virginia Mutual Insurance Company.
• Docket Number: No. 268
• Decision Date: 26 June 1959

Page 309

220 Md. 309 153 A.2d 271 James LITTLE
v.
Robert H. MILLER, Jr., to own use and use and benefit,
Virginia Mutual Insurance Company. No. 268. Court of Appeals of Maryland. June 26, 1959.

Page 311

[153 A.2d 272] Archie D. Williams, Baltimore, Arthur G. Murphy, Baltimore, on the brief for appellant.

Robert S. Rody and Julius G. Maurer, Baltimore, for appellee.

Before BRUNE, C. J., and HENDERSON, HAMMOND, PRESCOTT and HORNEY, JJ.

BRUNE, Chief Judge.

The appellees, Robert H. Miller, Jr., and his insurer, as subrogee under an automobile collision insurance policy, brought suit in Baltimore City against Dundalk Lumber Company (Dundalk) and against the appellant, James Little, for damages to Miller's automobile caused by a collision with a truck owned by Dundalk and alleged to have been operated by

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Little. The accident occurred on September 10, 1951, in Baltimore, suit was filed on March 4, 1952, and Little was returned summoned on March 8, 1952. The suit was not pressed against Dundalk. On October 1, 1954, the plaintiffs obtained a judgment by default against Little. Subsequently there was an inquisition as to damages, and judgment for $1,175 and costs was entered against Little. On November 24, 1958, Little filed a motion to vacate the judgment. There was a hearing on the motion on December 22, 1958, the motion was denied on that day, and Little appeals.

In his motion Little alleged that he was not personally served with process in this case and that the sheriff's return showing him to have been summoned was false.

Little is a resident of Anne Arundel County. He is a seaman and claims to have been absent from the country on a foreign voyage at the time of the accident here involved and again at the time when service upon him was reported to have been made by a deputy sheriff of Anne Arundel County. The deputy was not called as a witness, and Little was the only witness who testified at the hearing on the motion. He produced a discharge certificate issued by the United States Coast Guard at Baltimore. This showed that James Little had been a member of the crew of a ship which had departed from Baltimore on March 6, 1952, and had returned to that port on March 17, 1952. The vessel was a United Fruit ship. The plaintiffs-appellees questioned in this court the identity of the James Little to whom his discharge and a similar one relating to a different ship and a different voyage, covering the period from August 20th to September 21st, 1951, had been issued. They did not, however, introduce any evidence on this question, except to develop on cross-examination of Little that his father's name is James L. Little. Both discharge certificates were issued in the name of 'James Little', without any initial. Each was signed 'James W. Little' in the space provided for the signature of the seaman. In this connection, we note that the plaintiffs produced in the trial court a letter from the Department of Motor Vehicles (hereinafter referred to) which they apparently offered as relating to the defendant. That

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letter refers to 'James Wise Little' (italics supplied), and it appears to have been in response to a letter from the plaintiffs' counsel relating to a person of that name.

In the trial court the plaintiffs urged that in view of the fact that the defendant 'had [153 A.2d 273] notice of the pendency of the suit and did nothing about it for a period of six years, * he should not receive consideration at this late hour.' The trial court seems to have adopted this view. The judge said, in part, that Little took no interest in the judgment, except when he wanted the right to drive a car, and that he had waited too long and had done nothing. The judge closed his remarks with this statement: 'I think they got the right man, and under the circumstances, I have great doubt whether he should have this judgment stricken, and I refuse to do it after the lapse of all this time.'

The evidence of the defendant himself would, we think, sustain a finding that he knew in the latter part of March, 1952, that he had been sued in this case and despite his denial of ever having actually received any papers in the case in his hands, it could readily be inferred that the summons and a copy of the declaration...