Maryland Steel Co. of Sparrows Point v. Marney.

• Decision Date: 17 June 1900
• Citation: 46 A. 1077,91 Md. 360
• Parties: MARYLAND STEEL CO. OF SPARROWS POINT v. MARNEY et al. (two cases).
• Court: Maryland Court of Appeals

46 A. 1077

91 Md. 360

MARYLAND STEEL CO. OF SPARROWS POINT

v. MARNEY et al. (two cases).

Court of Appeals of Maryland.

June 17, 1900.

Appeal from court of common pleas; John J. Doblen, Judge.

Appeal from circuit court No. 2 of Baltimore city; George M. Sharp, Judge.

"To be officially reported."

Petition by the Maryland Steel Company of Sparrows Point against John Marney and others to strike out a judgment; also, bill by the same plaintiff to enjoin collection of said judgment. Demurrers to the petition and bill were sustained, and plaintiff appeals. Affirmed.

Argued before McSHERRY, C. J., and FOWLER, BRISCOE, PAGE, BOYD, PEARCE, SCHMUCKER, and JONES, JJ.

John Prentiss Poe, Alexander Preston, and J. Alex. Preston, for appellant. We L. Marbury, C. W. Kohlman, and C. B. Slingluff, for appellees.

BOYD, J.John Marney sued the appellant for injuries sustained by him while in the employ of that company, by reason, as he alleged, of tbe incompetency of some of bis fellow servants, and the failure of the company to provide suitable and safe machinery and appliances. The injury resulted in the loss of both of his eyes, and on the 12th of May, 1898, he recovered a verdict for $15,000 in the court of common pleas of Baltimore city. The company made a motion for a new trial, which was overruled, and an appeal was then taken to this court, resulting in the affirmance of the judgment; the case being reported in 88 Md. 482, 42 Atl. 60, 42 L. R. A. 842. A motion for a reargument was overruled, and the company then superseded the judgment for six months, which expired on the 11th of August, 1899; one-third of the judgment having been in the meantime entered to the use of C. W. Kohlman and William L. Marbury, who were the attorneys for Mamey. On the 9th of August the company made a motion in the court of common pleas to strike out the judgment, and the same day filed a bill in the circuit court No. 2 of Baltimore city to restrain the appellees from collecting it. Messrs. Kohlman and Marbury demurred to the petition to strike "out the judgment, and also to the bill of complaint, and the demurrer in each case was sustained, and the motion to strike out the judgment overruled, from which rulings these appeals were taken.

As has been held in a number of cases in this state, the power to set aside judgments, upon motion, for fraud, deceit, surprise, or irregularity in obtaining them, is a common-law power incident to courts of record. During the term at which a judgment is rendered it remains subject to the control of the court; but after the lapse of the term there must be the most clear and satisfactory proof of the fraud, mistake, surprise, or other ground relied on, and the party seeking such relief must appear to have acted in good faith, and with proper diligence. The court exercises a general equity jurisdiction, and considers all the facts and circumstances of the case. When, therefore, it is sought to vacate a judgment on the ground of fraud, the court in which it was rendered ordinarily has as much power to entertain and act upon the application as a court of equity has. The main difficulty in the way of the court of common pleas granting the appellant full relief, if otherwise entitled to it, that suggests itself to us, is the fact that the judgment was affirmed by this court. The constitution (article 4, § 15) provides that its judgments "shall be final and conclusive," and the Code authorizes a fieri facias or attachment to be issued on such judgment, and provides for the supersedeas of it within two months after the rendition. It may, therefore, be questionable whether complete relief could be granted by the court of common pleas under such circumstances; but, as that question was not argued, and we heard the two appeals together, it will not be necessary to do more than allude to the point, so that it may not be hereafter assumed that we conceded that the lower court can vacate a judgment, on motion, after it has been affirmed, and then superseded, as a judgment of this court But, passing that by without further comment, the motion is, in our opinion, lacking in some allegations that are material and necessary to authorize a court to set aside a judgment, irrespective of the question whether the fraud alleged is sufficient. Marney obtained his judgment by proof that a co-employe named Schmidt was incompetent, and that notwithstanding such incompetency was known to the defendant, it continued him in its employ, thereby causing the injury complained of. The ground upon which the motion is based is that Schmidt P. Clinton Johnson, and John P. Hines entered into a conspiracy with the plaintiff to establish his case by false testimony, for which he "was to compensate all three of said parties. Schmidt was to get one hundred dollars, Johnson was to get two hundred and fifty dollars, and Hines was also to get two hundred and fifty dollars." It alleges that the incompetency of Schmidt was sworn to by Johnson and Hines, and the knowledge of it by the defendant was attempted to be proved by Hines. The only false testimony specifically pointed out was that Hines swore that Axel Sahlin, the superintendent of the defendant company, was present September 16, 1895, the day of the accident; saw Schmidt at work at the cupola, where the accident happened; noticed his unfitness for the place, and spoke to Hines about it, remarking that he would burn himself, and injure some of the other employes. It then alleges that Sahlin was not present on that day, but was in Europe, having left Baltimore on August 30, 1895, and did not return until October 11th of that year. It undertakes to excuse its ignorance of the fact at the time of the trial by saying that the suit was not brought until the spring of 1897; that Sahlin had left its employ on or about the 1st of January, 1897, and it did not discover until May, 1899, that he was not present, after which time it immediately instituted careful inquiries as to the relations between the plaintiff and those three parties, and after a careful and somewhat protracted investigation it ascertained the conspiracy between them. It does not, however, in the motion, deny either that Schmidt was incompetent, or, if he was, that the defendant knew it. Indeed,, it does not in terms deny that Sahlin knew that he was incompetent, but only that he was not present at the time of the accident. If Sahlin was absent on that day, it may nevertheless be true that he did know that Schmidt was incompetent, as the testimony in the original case showed that he had been previously taken from the cupola because he was not competent, but was put there by Hines on the day of the accident by reason of the temporary absence of the regular man. But iif Sahlin never did know it, and if it is conceded that the testimony of Hines in respect to Sahlin's presence the day of the accident was deliberately false, there is no allegation that the party who took Sahlin's place in his absence was not aware of the incompetency of Schmidt if Sahlin was absent, and no one was in his place, then, according to the testimony at the trial, the knowledge of Hines was notice to the company. He was foreman of that department, employed and discharged the men under him, but was himself under Sahlin when he was there. There are, of course, cases in which it is not necessary, in a motion to strike out a judgment, to show that the defendant has a meritorious case. If, for example, the ground be that the defendant was never summoned, and he had not appeared by counsel or in person, the court would have no jurisdiction to enter up the judgment, and the merits of the case would, therefore, not be involved in such motion; but that is not so in a case of this character. In many states affidavits of meritorious defenses are required to be filed in seeking to vacate judgments. 15 Enc. PI. & Prac. 277, etc. While there is no statute in this state requiring that in a case such as this, especially as there has been a trial, and the judgment sought to be vacated was obtained after verdict, the court should not entertain a motion unless it sets up a meritorious defense, and it would not be justified in disturbing the judgment on proof that certain testimony was false and corrupt, without it being shown that the party had in point of fact been injured thereby. 1 Black, Judgm. § 347. If Schmidt was in fact incompetent, and notice of it was so brought to the defendant's attention as to bind it, it should not be relieved of the judgment merely because the particular proof of those facts was false. To adopt such a rule would not be giving judgments that force and effect they are entitled to. The demurrer to the petition to strike out the judgment was, therefore, properly sustained, if for no other reason, because it does not show that the defendant has a meritorious defense, and that the judgment is unjust as it stands.

But the bill in equity does allege what we have just stated should have been in the motion, and as we cot Id, if that was the only difficulty in the way of granting the motion, remand the cause with leave to amend, we will now determine whether the appellant has shown itself to be entitled to relief, regardless of that technical question. We will not stop to discuss the point raised by the appellee,—whether a party can make a motion to strike out a judgment in the court where it is rendered, and at the same time file a bill in equity to have it set aside. There may be cases where the aid of a court of equity is necessary to do full justice, although application has been made to strike out the original judgment Under the pe culiar circumstances of this case, where there is a judgment in the court below, which was affirmed in this court, and then superseded, a court of equity could undoubtedly afford more ample relief, if the appellant is entitled to it, than could be obtained in the court of common pleas, especially if it be necessary to...