Pattison v. Hughes

• Decision Date: 01 March 1895
• Parties: PATTISON v. HUGHES.
• Court: Maryland Court of Appeals

31 A. 320

80 Md. 559

PATTISON v. HUGHES.

Court of Appeals of Maryland

March 1, 1895

Appeal from circuit court, Howard county.

Action by Robert H. Hughes, executor, against Martin L. Pattison. There was a judgment by default for plaintiff, and, from an order denying a motion for a vacation of the judgment defendant appeals. Reversed.

Argued before ROBINSON, C.J., and BRYAN, BRISCOE, McSHERRY, FOWLER ROBERTS, PAGE, and BOYD, JJ.

Thomas S. Hodson, Edward H. Kines, and T. Sherwood Hodson, for appellant.

Jas Mackubin, for appellee.

FOWLER, J.

On the 30th of August, 1893, the late Henry E. Wooten, as attorney for the appellee, directed a summons to be issued against the appellant from the circuit court for Howard county, to answer an action at the suit of the appellee, as executor of Robert L. Ewing. The summons was duly issued, and the appellant was returned "Summoned" on the 2d of September. No other proceedings were taken in the cause until the 19th March, 1894, when Mr. James Mackubin entered his appearance as attorney, for the appellee, and filed, for the first time, a declaration consisting of the common counts, the suit having been originally brought on titling. On the 18th June, 1894, being the first day of the June term, a judgment by default was taken by the plaintiff against the defendant, and the same day it was extended, upon proof before the court, for $257. Several months thereafter, on the 24th November, and, as he alleges, within three or four days of the time when he first heard of either the suit or the judgment, the appellant filed a motion to strike out the latter--First, because the summons was not served on him, and he had no notice of the suit or any opportunity of defense; second, because he had no notice of the suit or judgment until the 20th November, and proceeded without delay to file his motion; and, lastly, because he is not indebted to the plaintiff in any sum whatever, and had a perfectly good defense, of which he would have availed himself if an opportunity had been given him. In support of his motion the appellant relied upon the testimony of four witnesses,--himself, his wife, his son, and a neighbor, Mr. Earp. The latter was not present when the deputy sheriff called at the appellant's house, but the others all swear in the most positive manner that the officer was drunk on that occasion. The defendant says: "He was drunk. He fumbled around in his pockets as though he were looking for a paper. He took no paper out, nor did he read any to me, nor did I have any paper in my hand. He turned to go away, and I said to him, 'What is this for?' and he said, 'I don't know'; whereupon he got in his carriage, and went away." The appellant's wife says that her attention was first called to the deputy sheriff by one of the little children, who said to her, "Come and see the funny drunken man"; when she went to the door, and heard the officer say to her husband, "I want you to come to Ellicott City." She did not remember the day he told him to come. Her husband asked what for, and he said, "I don't know." The son says the officer was drunk, and acted like a drunken man. To use the language of the witness: "He was drunk, for no sober man would act as he did; and he said to my father, 'I want you to come to Ellicott City.' I don't remember what day he told him to come, and where and when it was,--some time in September. Father asked him what he was to come for, and then the officer told him that he did not know, and he produced no papers." There is not one word to contradict the above testimony in regard to the condition of the...