Montgomery v. Murphy

Decision Date05 May 1863
Citation19 Md. 576
CourtMaryland Court of Appeals

A judgment by confession, is an affirmative act consented to by the defendant in person, or by his attorneys with the leave of the Court.

The judgment records of the State are presumed to have been made up after the most careful deliberation, and to permit them to be altered or amended without the most solemn forms of proceeding, would be contrary to law and good policy.

In deciding upon an application to strike out a judgment after the term is past, for any of the reasons mentioned in the Act of 1787, ch. 9, the Court acts in the exercise of its quasi equitable powers, and will therefore properly consider all the facts and circumstances of the case, and require that the party making the application shall appear to have acted in good faith, and with ordinary diligence. Relief will not be granted when he has knowingly acquiesced in the judgment complained of, or has been guilty of laches and unreasonable delay in seeking his remedy.

Although as decided in the case of Weighorst vs. The State, 7 Md. Rep., 450," it has always been the habit of Clerks to take minutes and docket entries of the Court's proceedings, and subsequently to enter them at length in technical language, according to established forms; " this Court cannot sanction the extension of this habit to a case in which the Clerk has made the single entry of " judgment, " and then out of Court fixes the liability of plaintiff or defendant from mere recollection as to how the judgment should be entered at length.

The Act of 1787, ch. 9, authorizes the correction of errors in such cases as the above, and the Court of Appeals are assured they will promote the sanctity of judicial records by granting relief under their quasi equitable powers, when so manifest an error is presented for their consideration.

APPEAL from the Superior Court of Baltimore city.

This was an action of assumpsit, brought by the appellee against the appellant, on the 15th day of December 1854 to recover the amount of an open account of $1,520.69. The appeal is from the action of the Court below (MARTIN, J.) overruling a motion of the appellant to strike out a judgment by confession alleged to have been entered in the case by mistake, and to enter said judgment as a judgment of non pros. The case is stated in the opinion of this Court.

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

Geo. H. Williams, for the appellant, argued:

That upon the proof, the true judgment as rendered by a tribunal in session, was a judgment by default, against the plaintiff for want of a replication and a compliance with the demand for a bill of particulars. That a deputy clerk, out of the presence of the Court, in the clerk's office, has no right to alter a Court record, and manufacture a different judgment, nor in fact to make any judgment. That the judgment in question was the result of a mistake. That the motion to correct it having been made within a few days after its discovery, was in ample time, and the evidence shows that the appellant was guilty of no laches. That up to the time of said motion, no action by the plaintiff had been taken on the judgment. That this case is one of hardship, and especially designed to be reached by the Act of November Session 1787, ch. 9, sec. 6. Weighorst vs. The State, 7 Md. Rep., 450. Bridendolph vs. Zellers' Exrs., 3 Md. Ch. Dec., 333. Kemp & Buckey vs. Cook & Ridgley, 18 Md. Rep., 130. On vacating decrees in Equity for the same cause as is here alleged, as much time is given to file a petition for review or re-hearing as for appeal, to wit, nine months. Oliver vs. Palmer, 11 G. & J., 138.

St. Geo. W. Teakle, for the appellee:

The motion to strike out said judgment was properly overruled; because the motion to strike out was not made during the term of Court in which it was entered, but some four terms, or nearly sixteen months after said judgment was entered; and because, upon the proof in the cause, the relief asked ought not to be granted.



The appeal in this case was taken from the action of the Superior Court of Baltimore city, overruling the motion of the appellant to strike out a judgment entered against him in that Court, on the 15th day of September 1855.

The motion to strike out the judgment was filed on the 9th day of January 1857, and the appellant assigned as the reasons for the motion, that the judgment was entered by mistake, and was not the proper judgment to be entered.

We find from the record that the appellee instituted suit against the appellant to recover $3,000 for work and labor, and for goods sold and delivered; and that at May term 1855, the appellant appeared by Messrs. McLean and Williams as his attorneys, pleaded the general issue and the statute of limitations, and also demanded a bill of particulars.

The cause was continued until the September term following; and though service of the rule, replication and notice of demand for a bill of particulars was admitted by the attorney for the appellee, no replication was filed nor bill of particulars furnished, but at this term a judgment by confession for the plaintiff was entered and...

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7 cases
  • Abell v. Simon
    • United States
    • Maryland Court of Appeals
    • June 27, 1878
    ...a judgment and quash the writ of fi. fa., the courts exercise a quasi equitable jurisdiction. Bridendolph v. Zeller, 3 Md. 325; Montgomery v. Murphy, 19 Md. 576. A of equity exercising general equitable jurisdiction would grant relief if a case like the one at bar were presented. Gardner v.......
  • Johnson v. Lemmon
    • United States
    • Maryland Court of Appeals
    • January 30, 1873
    ... ... establish as clear a case of surprise as could be stated ... Green v. Hamilton, 16 Md. 317; Kemp v ... Cook, 18 Md. 130; Montgomery v. Murphy, 19 Md ...           ... Alexander H. Hobbs, for the appellee ...          The ... motion of the appellant, that ... ...
  • Coulbourn v. Fleming
    • United States
    • Maryland Court of Appeals
    • November 16, 1893
    ...v. Dorsett, 2 Har. & G. 374; Green v. Hamilton, 16 Md. 317; Graff v. Transportation Co., 18 Md. 364; Kemp v. Cook, Id. 130; Montgomery v. Murphy, 19 Md. 576; May Wolvington, 69 Md. 117, 14 A. 706; Powhatan Steamboat Co. v. Potomac Steamboat Co., 36 Md. 238. All of these cases, except the la......
  • Town of Frostburg v. Tiddy
    • United States
    • Maryland Court of Appeals
    • May 15, 1885
    ... ... A judgment is the act of the court, ... and can be entered only by and in the presence of the court ... Weighorst v. State, 7 Md. 450; Montgomery v ... Murphy, 19 Md. 576; Johns v. Fritchy, 39 Md ... 258; Carrollton Savings Asso. v. Kerngood, 51 Md ... 416; Lee v. Carrollton Savings Asso ... ...
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