Remsburg v. Baker

• Court: Maryland Supreme Court
• Writing for the Court: Before BRUNE; COLLINS; Offutt
• Citation: Remsburg v. Baker, 129 A.2d 687, 212 Md. 465 (Md. 1957)
• Decision Date: 07 March 1957
• Docket Number: No. 112,112
• Parties: Bruce Y. REMSBURG v. Myril S. BAKER et ux.

Page 465

212 Md. 465

129 A.2d 687

Bruce Y. REMSBURG v. Myril S. BAKER et ux.

No. 112.

Court of Appeals of Maryland.

March 7, 1957.

J. Howard Holzer, Baltimore (Paul J. Yeager, Baltimore, on the brief), for appellant.

Norman Hochberg, Baltimore, for appellees.

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

COLLINS, Judge.

This is an appeal from the denial of appellant's, defendant's, motion to strike out a judgment obtained against him by the appellees, plaintiffs.

On November 8, 1955, a confessed judgment note in the amount of $7,500 was executed to Myril S. and Helen S. Baker, appellees, due 120 days after date. This note contained the following signatures:

'Witness ..... hand and seal,

By: --B. Y. Remsburg And Individually

'(Corporate Seal)

Universal Motorists Ass'n., Inc. (Seal)

David N. Obenstine, Jr., Pres. (Seal)' When the note became due and was not paid, plaintiffs, without notice to Mr. Remsburg, defendant, entered judgment against Universal Motorists Association, Inc. (Universal), and against Mr. Remsburg, a resident of Frederick County. Upon being served with notice of suit, Mr. Remsburg filed a motion to strike out the judgment against him. The motion under oath stated that the defendant did not sign said note either as maker or co-maker but on the contrary signed as a witness to the signature of David N. Obenstine, Jr., President of Universal; that after defendant so witnessed the signature and without his knowledge and consent someone typed under his signature the words 'And Individually' in an apparent attempt to cause him to be jointly and severally liable on said note; and that defendant never received nor was it contemplated that he would receive any of the money represented by the note. He asked that the judgment be stricken out; that he be permitted to file pleas; and that the case be set for trial before a jury. From a denial of that motion appellant appeals to this Court. Universal made no defense to the judgment nor was it represented by counsel in any of the proceedings.

The defendant claims that he was not indebted to the plaintiffs in any amount; that he signed his name directly beneath the printed word 'Witness'; that he prefaced his signature with the word 'By'; that he did not use the word 'Seal' after his name; that the only purpose he had in signing his name was to indicate that he knew of the execution of the note by Universal and to witness to signature of its president; and that the words 'And Individually' were not on the note when he signed it. He contends that by the material alteration of the note, by the addition of the words 'And Individually' without his consent, he is not bound as a co-maker.

Part 3, subd. II. Judgments by Confession, Rule 1(b), of the General Rules of Practice and Procedure, in effect when the motion was heard, provides in part that a defendant, upon receipt of summons, may show cause within thirty days why the judgment should be vacated, opened or modified and that any application made 'within thirty days from the service of the summons shall be promptly heard by the court, and such action taken as the court may deem just.' The General Rules of Practice and Procedure were adopted by this Court, effective September 1, 1941, and a rule applicable to judgment by confession was then adopted. This rule contained the quoted part set out above. No change has been made in the quoted part of that rule since that time and is contained in Rule 645, of the Maryland Rules of Procedure, effective January 1, 1957.

In Foland v. Hoffman, 186 Md. 423, 431, 47 A.2d 62, 66, decided May 15, 1946, it was said by this Court as to judgments by confession: 'This rule requiring a defendant to be summoned and show cause within thirty days from service upon him of a nisi order why the judgment should be vacated, opened, or modified, did not change the existing practice in such cases. It provided a means to inform the judgment debtor of the judgment, and afforded him an opportunity to move that it be vacated, opened, or modified. He should file a motion under oath, setting out fully all the facts and circumstances tending to show that the judgment should be stricken out, with a prayer that the judgment be reopened and that he be permitted to file pleas and try the case before a jury. Upon proper proof, the court will so order. For a full treatment of the proper practice see Keiner v. Commerce Trust Co., supra, 154 Md. at pages 370, 371, 141 A. 121 [at pages 122, 123].'

Judge Offutt said for this Court in Keiner v. Commerce Trust Co., supra, 154 Md. 366, 370, 371, 141 A. 121, 122: 'A judgment by confession possesses all the incidents, is supported by the same presumptions, and is entitled to the same faith and credit, as any other judgment (Freeman on Judgments, par. 1337), and that is so whether the confession is by the defendant in person or by another with his consent. (Id.). But while that is true, the...