North v. Town Real Estate Corp.
| Decision Date | 20 July 1948 |
| Docket Number | 193. |
| Citation | 60 A.2d 665,191 Md. 212 |
| Parties | NORTH v. TOWN REAL ESTATE CORPORATION. |
| Court | Maryland Court of Appeals |
Appeal from Superior Court of Baltimore City; Herman M. Moser Judge.
Action by Lawrence North against Town Real Estate Corporation for damages for breach of contract wherein plaintiff recovered a default judgment. From an order quashing the writ of summons and vacating the judgment, plaintiff appeals.
Affirmed.
A Frederick Taylor, of Baltimore (Allers & Cochran, of Baltimore, and Charles E. Edmondson, of Cambridge, on the brief), for appellant.
Robert E. Coughlan, Jr., of Baltimore (George E. Brown, Jr., of Baltimore, on the brief), for appellee.
Before MARBURY, C.J., and DELAPLAINE, COLLINS, GRASON, HENDERSON and MARKELL, JJ.
The question raised on this appeal is whether the Superior Court of Baltimore City erred in striking out a judgment which had been entered by default in favor of Lawrence North plaintiff, against Town Real Estate Corporation, defendant.
Plaintiff alleged in his declaration filed September 30, 1946, that he had been granted a concession by Bay Shore Amusement Park, Inc., to operate a public launch at the end of the pier at Bay Shore Park on the Chesapeake Bay; that he had made payment in accordance with the contract and also had spent about $500 in building a landing platform and runway at the end of the pier; but that Bay Shore Amusement Park, Inc., was sold to defendant; and defendant revoked the contract. Plaintiff claimed $10,000 damages for breach of contract. The writ of summons was made returnable to the second Monday in October, the October return day, but defendant was returned non est. On October 14 the writ was stamped: 'Renewed to November Return Day.' The clerk of the court, however, neglected to imprint this stamp on the copy of the summons and the copy of the declaration. On October 17 the copy of the writ and the copy of the declaration, indicating that the writ was returnable to the October return day, were served on Oswald L. Bonifay, president and resident agent of defendant.
On December 12, 1946, judgment by default was entered against the corporation, no plea having been filed by the December return day. On February 19, 1947, the judgment for plaintiff was extended for the sum of $4,340. A petition for supplementary proceedings was filed on May 29, and on June 9 the attorney for defendant, appearing specially, moved to quash the writ of summons and vacate the judgment. From the Court's order quashing the writ and vacating the judgment plaintiff appealed here.
The Maryland Corporation Law expressly provides that the officer serving process in any action against a corporation of this State or a foreign corporation shall leave a copy thereof with the person upon whom it is served. Code 1939, art. 23, sec. 111(g) . In addition, the local law of Baltimore City provides that a copy of the declaration must be delivered to the defendant before the return day of the writ, and the defendant must be summoned before the return day. Baltimore City Charter, 1938 Ed., sec. 400. If the original writ is not served on the defendant and is returned not executed, it may be renewed returnable to the next return day thereafter. Baltimore City Charter, 1938 Ed., sec. 397. When a declaration in any action is filed in one of the courts of Baltimore City, and a copy is delivered to the defendant before the return day of the writ, and the defendant is summoned before the return day, he shall plead before the next succeeding return day, or judgment by default for want of a plea will be entered by the court or the clerk thereof upon motion of the plaintiff, unless the Court for good reasons grants the defendant further time in which to plead. Baltimore City Charter, 1938 Ed., sec. 400.
It is well established that the common law courts in Maryland have inherent power as courts of record to strike out judgments improperly rendered. Where the motion to strike out the judgment is made during the same term at which the judgment is rendered (or within thirty days thereafter under the practice in Baltimore City), the application is within the sound discretion of the court; and when the motion is granted and the judgment stricken out, no appeal will lie at the instance of the plaintiff. After the term at which a judgment is recovered (or after the lapse of thirty days in cases under the local law of Baltimoer City), the judgment is said to be enrolled, and thereafter it cannot be stricken out except upon clear and convincing proof that it was obtained by fraud, surprise, mistake or irregularity, and unless it appears that the party making the application had acted in good faith and with ordinary diligence. Harvey v. Slacum, 181 Md. 206, 29 A.2d 276; 2 Poe, Pleading and Practice, 5th Ed., secs. 388-392.
It is a fundamental rule that a judgment obtained in a suit of which the defendant received no notice is a nullity, and should be stricken out upon proof that no summons had been served upon him and he had no opportunity to be heard. Simon v. Southern Ry. Co., 236 U.S. 115, 35 S.Ct. 255, 257, 59 L.Ed. 492. In this case the deputy sheriff summoned defendant corporation on October 17 to appear on October 14. Bonifay, the president and resident agent, testified that, after the papers were served upon him, he handed them to his secretary with the request that she forward them to the corporation's attorney; but later his secretary, noticing that the date for appearance had passed, called his attention to the mistake. He also testified that he had no knowledge whatever that the judgment had been entered against the corporation until he received notice of the supplementary proceedings. The secretary testified that, after calling Bonifay's attention to the mistake, he directed her to keep the papers with the remark: 'We will probably hear from the Court at some time in the future.' Because it was absolutely impossible to comply with the summons, Bonifay supposed that it was not incumbent upon him to take any action, and that the corporation would be served with another writ before it would be necessary to appear.
It was argued by appellant that, while it is true that a corporation, under the Maryland statute, is entitled to have a copy of process left with its agent upon whom service is made, yet if the summons is read or explained to the agent, the corporation is put on notice. But we cannot assume from the return of the summons that the deputy sheriff either read it or explained it to Bonifay. There is no evidence that the summons was read or explained to him. The sheriff's return is prima facie evidence of its own correctness. But there is no statute in this State requiring the reading of a summons to the defendant, though it is a proper service. Adkins v. Selbyville Mfg. Co., ...
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