Pumphrey v. Grapes

• Decision Date: 28 February 1958
• Docket Number: No. 149,149
• Citation: 215 Md. 573,138 A.2d 916
• Parties: Linton A. PUMPHREY et ux. v. Howard GRAPES.
• Court: Maryland Court of Appeals

Page 573

215 Md. 573

138 A.2d 916

Linton A. PUMPHREY et ux. v. Howard GRAPES.

No. 149.

Court of Appeals of Maryland.

Feb. 28, 1958.

C. Maurice Weidemeyer, Annapolis (T. Hunt Mayfield, Ellicott City, on the brief), for appellants.

George D. Solter, Baltimore (Due Nickerson, Whiteford & Taylor, Baltimore, and John L. Clark, Ellicott City, on the brief), for appellee.

Before BRUNE, C. J., and HENDERSON, HAMMOND, PRESCOTT and HORNEY, JJ.

HENDERSON, Judge.

The sole question involved in this appeal is the correctness of the ruling of the trial court in declining to strike out an enrolled judgment.

An action filed in the Circuit Court for Anne Arundel County, for personal injuries sustained by a tenant of a small house on the Pumphrey farm, was removed for trial to Howard County. The plaintiff, Grapes, obtained a verdict against both of the landlords, appellants. A partial new trial was ordered as to Mrs. Pumphrey, on the single issue as to whether Mr. Pumphrey, in renting the house, was the agent of his wife. The property was held as tenants by the entireties. Mrs. Pumphrey had been in bad health and there was some question of her mental competency, although she had never been adjudicated an incompetent. On the new trial, the plaintiff moved for a directed verdict, relying upon the testimony of the plaintiff and upon certain admissions made by Mrs. Pumphrey in her deposition, but the motion was overruled and the jury found in her favor on the issue of agency on April 8, 1957. On April 10, 1957, the plaintiff filed a motion for judgment n. o. v On April 11, 1957, counsel for the appellants wrote Judge Macgill stating that counsel had agreed to submit the matter without oral argument. On the same day counsel for the appellee wrote Judge Macgill confirming the agreement to submit, and stating that he thought it unnecessary to repeat the arguments that had been fully developed in the previous hearings and in briefs filed on the motion for new trial, and on a motion for summary judgment. On April 20, 1957, the trial court filed a brief memorandum of his views and signed an order directing that the clerk make a docket entry that the motion was granted and that judgment be entered accordingly against both defendants. On the same day the deputy clerk made the entries as directed. He testified that two typewritten copies of the memorandum and order were delivered to him by the Judge's secretary, along with the original order. These were intended to be furnished to local counsel for the parties, Mr. Mayfield and Mr. Clark, and he noted the names of each on the copies. Mr. Mayfield was out of town and did not return until April 25. In some way Mr. Clark obtained his copy, but Mr. Mayfield did not. In his testimony at the hearing on the motion to strike, Mr. Mayfield admitted that he made no inquiry concerning the disposition of the motion n. o. v., either of the court or the clerk, between April 10 and May 23. He testified that he had a conversation with the clerk about costs in the case prior to May 20, 1957, but did not learn that the order had been filed until May 23, 1957. A motion to strike and reenter the judgment was filed a few days later.

It is clear, of course, that the time for appeal expired, and the judgments became enrolled, after the lapse of thirty days. Rule 812 a of the Maryland Rules; 2 Poe, Pleading and Practice (Tiffany's Ed.), § 390; Vierling v. Holt, 197 Md. 522, 524, 80 A.2d 24. The revisory power of the court in such cases is limited to cases of fraud, mistake or irregularity. Rule 625, Maryland Rules. This rule, of course, merely restates in substance the rule at common law, and under the General Rules of Practice and Procedure, Part Two, VI, Rule 1. There is no charge of fraud, and we think the appellants have not made out such a case of mistake or irregularity as to entitle them to relief. In Baltimore Luggage Co. v. Ligon, 208 Md. 406, 421, 118 A.2d 665, 673, we said: 'It is settled that a party to litigation, over whom the court has obtained jurisdiction, is charged with the...