Parker v. Berryman

• Decision Date: 21 April 1938
• Docket Number: 6.
• Citation: 198 A. 708,174 Md. 356
• Parties: PARKER v. BERRYMAN et al.
• Court: Maryland Court of Appeals

198 A. 708

174 Md. 356

PARKER v. BERRYMAN et al.

No. 6.

Court of Appeals of Maryland

April 21, 1938

Appeal from Circuit Court, Baltimore County; William H. Lawrence Judge.

Suit in equity by Sarah Marcella Parker against William Berryman and another to enjoin execution on and strike out a judgment against complainant. From a decree of dismissal, complainant appeals.

Affirmed.

Gwynn Nelson, of Towson, for appellees.

Argued before BOND, C.J., and URNER, PARKE, SLOAN, MITCHELL, and JOHNSON, JJ.

BOND Chief Judge.

A complainant in equity appeals from dismissal of her bill to enjoin execution on a judgment entered against her by a justice of the peace, and to strike it out, because of lack of service of summons on her and knowledge of the suit and judgment, and of irregularities in the proceedings before the justice. Execution is threatened on a farm, title to which stood in her name but which after having been warned of the judgment, she conveyed through an intermediary to her son. A meritorious defense to the charge and the suit is averred.

The judgment was obtained by an undertaker, now dead, for services in connection with the funeral of the appellant's mother, buried from her house in 1916. Entries in an account book of the undertaker show an original charge of $93.50, reduced by a payment of $20 in 1918. The suit was entered in 1921 before J. Smith Orrick, a justice of the peace, now dead. After some returns of the summons 'Not found,' the defendant was returned 'Summoned,' on April 19, 1922; the case was continued to May 13, 1922; and, the defendant not appearing, judgment was entered against her, and was duly recorded on July 26 1922. The magistrate's original docket produced in court recites three issues of the summons, on September 9, and November 30, 1921, and April 13, 1922, and it is contended that by failure to issue in the intervals between those dates the suit became discontinued, and no subsequent summons could be effectual to support the proceeding to judgment.

The recital in the docket continues: 'May 13, 1922, Judgment ex parte in favor of the plaintiff for ninety nine dollars and fifty cents current money with interest,' etc. Differing in that part of the entries, the certified copy recorded in the office of the clerk of the circuit court recites: 'May 13, 1922, Defendant did not appear. Trial ex parte, Judgment in favor of the plaintiff,' etc. The appellant contends that, because of the absence from the original docket of an entry to show a trial had, or proof taken, the judgment must be taken as entered without proof, and for the reason invalid. This contention having been made below, the judgment creditor asked that the original docket be amended, and leave to amend was granted before the decision.

In addition to making this official return of 'Summoned,' the constable intrusted with the summons testified in this case that he made several unsuccessful efforts to find Mrs. Parker at her farm in 1922, carrying the summons in his pocket, and on the day specified in the return did find her and read the summons to her, but had as usual no copy to leave; that Mrs. Parker said she was not coming; that she was no more responsible for the bill than 'the others' were; and that he, the constable, advised her to come and contest the suit to avoid judgment. Mrs. Parker in her testimony agrees that the constable did visit her, but says she saw no paper and does not remember what he said to her, that she thought he was trying to collect a bill. A daughter-in-law of hers, present at the time, testified to the constable's visit, but did not hear what was said. She did not see any paper read. The defense to the charge, and to the suit, would be that two sisters of Mrs. Parker's were responsible for the bill with her. Who paid the $20 received by the undertaker on account was, according to their testimony, not known to the witnesses.

Lack of service of summons and knowledge of a suit may justify resort to equity to restrain execution, and strike the judgment out. Adkins v. Selbyville Mfg. Co., 134 Md. 497, 107 A 181; 3 Freeman, Judgments, 5th Ed., § 1228; Pomeroy, Equity Jurisprudence, § 1364. But an official return of service of a summons is presumed to be true until the presumption is rebutted by proof. 'Intendments will be made in support of the acts of ministerial officers, where they appear by the return of process to have discharged their duty, and the onus probandi rests on the party impeaching such acts.' Windwart v. Allen, 13 Md. 196, 200; Adkins v. Selbyville Mfg. Co., supra, 134 Md. 497, at page 501, 107 A. 181, 183. 'The mere denial of personal service by the party returned summoned will not avail to defeat or rebut the sworn return of the officer.' Wilmer v. Picka, 118 Md. 543, 549, 85 A. 778, 780. And the probabilities seem to support the return here. It would seem highly probable that the constable, having gone so far as to visit the house for the purpose, would not then fail to carry out the single piece of business which had brought him. As the court remarked in Adkins v. Selbyville Mfg. Co., supra, 'It is certainly...