Miles v. Hamilton

• Decision Date: 05 October 1973
• Docket Number: No. 15,15
• Citation: 309 A.2d 631,269 Md. 708
• Parties: Daniel N. MILES v. C. Ricardo HAMILTON t/a Delta Realty.
• Court: Maryland Court of Appeals

Page 708

269 Md. 708

309 A.2d 631

Daniel N. MILES v. C. Ricardo HAMILTON t/a Delta Realty.

No. 15.

Court of Appeals of Maryland.

Oct. 5, 1973.

George E. Meng, Upper Marlboro (Eugene E. Pitrof and Thomas L. Starkey, Upper Marlboro, on the brief), for appellant.

Paul E. Rosenberg, Camp Springs (John M. Brennan, Camp Springs, on the brief), for appellee.

Before MURPHY, C. J., and BARNES, McWILLIAMS, SINGLEY, SMITH, DIGGES and LEVINE, JJ.

SMITH, Judge.

We shall here direct that a judgment be vacated because we are of the opinion that the trial court never acquired jurisdiction over the defendant, Daniel N. Miles (Miles), appellant here.

Appellee, C. Ricardo Hamilton, sued Miles, conceded to be a resident of Charles County, in the Circuit Court for Charles County. Pursuant to the provisions of Maryland Rule 116, a private process server was designated. He made a return of 'non est.' The summons was reissued and placed in the hands of another private process server. He made a return reflecting service upon Miles on October 26, 1972, at his home near Pisgah, Maryland. ¹ When Miles failed to plead, Hamilton moved on November 29 for judgment by default. On December 7 judgment by default was entered against Miles with the provision 'that the matter be set down for ex parte proof before any member of (that) Court.' On the same day Miles filed a motion raising preliminary objection, claiming that he had not been personally served and that the court thus had no jurisdiction over him. A hearing was held on that motion on January 12. On January 22, 1973, the trial judge filed a memorandum in which he said that he found 'from the testimony given in the hearing . . . that under Article 75, Section 92 of the Maryland Code the summons was properly served.' He then overruled the motion raising preliminary objection. On January 24 Miles moved to strike the judgment by default on the basis of lack of service. On January 31 a hearing was held on the motion to strike the judgment by default and on an oral motion to reconsider the motion raising preliminary objection. Both motions were denied. On February 15 an appeal was entered to this Court on behalf of Miles without specification as to the order from which the appeal was entered, which is a permissible procedure. The argument here is directed to both motions.

The private process server was called as a witness at the hearing on the motion raising preliminary objection. He stated that before he went to the home of Miles he questioned 'a number of local people in the Pisgah area to find Mr. Miles' home.' Before arriving at the Miles home he stopped at a general store and at the post office, seeking information about Miles. From those sources and from an individual, said to be a friend of Miles, who occupied a mobile home located approximately one-quarter mile from the Miles home he learned of the location of the Miles residence. He said that the gentleman in the mobile home not only directed him to the Miles home, but called the Miles home by telephone, presumably to advise of the process server's approach.

It was the testimony of the process server that when he arrived at the Miles residence a truck was in the back yard, a truck he claimed was owned by Miles. His information, he said, was that Miles lived alone.

The Miles home was surrounded by a barbed wire fence, approximately four feet high, with four strands of barbed wire on the fence posts. Testimony was that there were a number of signs in the area such as 'No Trespassing,' 'Beware of the Dog,' 'No Parking,' and 'Keep Out.' The house was described as 'sitting approximately 30 to 40 yards away from the dirt road.' The process server gained entrance to the Miles yard by stepping over the rope which was across the driveway entrance. At that time he said he observed two large dogs at the rear of the Miles home which 'came around barking when (he) started to knock on Mr. Miles' door.' He knocked 'extensively,' but received no answer. The process server went across the road and talked to a neighbor, and then returned to the Miles home. He said he 'again got past the two dogs and knocked extensively on the back door, which the curtain was pulled slightly back and (he could) see a small portion in the house.' He claimed that 'after knocking for approximately five to six minutes, (he) then left Mr. Miles' property and went back to (his) office.' After a subsequent telephone call in which he said that he talked to Miles and Miles advised him that it was not he whom he wanted, but his son who had 'gone to see the heart doctor,' the process server returned to the Miles residence. He said he again knocked extensively at the front door, but received no answer. He then went to the back door where he 'knocked extensively.' He saw within the house a man whom he described as 'elderly,' being 'around fifty-five to sixty.' He asked him to open the door, but received no answer. Then, after, as he put it, 'establishing that, that this was Mr. Miles, (he) placed the summons inside the sliding screen of the door at which Mr. Miles, if he were to come out, would have had to have seen and touch(ed) those papers.' The process server then left.

At the hearing the process server said he saw Miles in the courtroom. He then proceeded to identify as Miles a man sitting on the front row in the courtroom. He said this was the man he saw at the Miles home on October 26. That man took the stand, identified himself as Bernard Craig of 25 P Street, N.E., Washington, D. C., said he knew Miles, and stated that on October 26, 1972, (the day on which the process server claimed to have served Miles at 11:50 a.m.) Miles arrived at his home in Washington between 9:30 and 10:00 a.m. and remained there until late in the afternoon. Miles apparently was not present at the hearing.

Code (1957) Art. 75, § 92, to which the trial judge alluded, provides in pertinent part:

' § 92. Where service resisted by threats, violence or intimidation.

'In all cases of civil process . . . issued out of any court . . . lawfully to be served upon any person whatsoever, wherein the service of such . . . process upon such person then being within the local jurisdiction of such court . . . shall be prevented or resisted by threats, violence, intimidation or superior force on the part or behalf of such person; or when the said person so liable to be served with such . . . process shall be within any fortress, or fortified place or building, or at any military post within said jurisdiction, and entrance thereto, or access therein to such person shall be by order or on the behalf of such person refused, obstructed or prevented, so that the officer charged with the service of such . . . process shall be unable to serve the same, or cannot do so without force, or personal risk, the said officer shall leave a copy of such . . . process, if practicable or permitted, with such person or persons as shall present themselves, where such writ or process is sought to be served, and where or whereabout the person on whom the same is sought to be served shall be; or shall set up such copy upon the fortress, building or premises aforesaid, or as near thereto as may be practicable; and shall make return of the facts accordingly; which return shall to all legal intents, purposes and effect be equivalent to a return of actual personal service of such . . . process upon the party named therein.' (Emphasis added.)

The return mentions no such facts, stating only:

'Daniel N. Miles, P. O. Box 117, Pisgah, Maryland was served in person on October 26,...