Ruth v. Durendo
| Decision Date | 17 January 1934 |
| Docket Number | 87. |
| Citation | 170 A. 582,166 Md. 83 |
| Parties | RUTH v. DURENDO. |
| Court | Maryland Court of Appeals |
Appeal from Superior Court of Baltimore City; Duke Bond, Judge.
Action by Alfredo Durendo against Joseph L. Ruth. From a judgment for plaintiff on the pleadings in scire facias proceedings to revive a judgment of a justice of the peace for plaintiff defendant appeals.
Appeal dismissed.
Argued before BOND, C.J., and PATTISON, URNER, ADKINS, OFFUTT DIGGES, PARKE, and SLOAN, JJ.
Emil Budnitz, of Baltimore, for appellant.
Howard L. Aaron, of Baltimore (Samuel J. Aaron, Irvin Davison, and Emanuel G. Carton, all of Baltimore, on the brief), for appellee. OFFUTT, Judge.
On December 15, 1920, A. M. Bryant, a justice of the peace of the state of Maryland in and for the city of Baltimore, in an action pending before him, rendered a judgment in favor of Alfredo Durendo against Joseph L. Ruth, for $50 and costs. Later the judgment was recorded in the office of the clerk of the superior court of Baltimore City, and on December 4 1932, a writ of scire facias issued out of that court to revive it. The defendant filed three pleas to the writ: (1) Nul tiel record; (2) that the justice of the peace was "without jurisdiction to render a judgment on the subject matter of said suit"; and (3) payment. The plaintiff by way of replication "joined issue" on those pleas, a replication which was accepted as sufficient by the defendant, the case tried upon those pleadings before the court without a jury, and at the conclusion of the evidence a verdict was returned for the plaintiff for $93.51. A motion for a new trial was filed and overruled and judgment entered on the verdict. From that judgment the defendant appealed.
The principal ground for the appeal is that the magistrate who rendered the original judgment was without jurisdiction because the claim which he adjudicated involved the title to real estate, and that for that reason the verdict of the trial court should have been for the defendant. Appellant also contends that the court erred in its rulings on evidence.
To prove his case, the plaintiff, without objection, offered the docket in which the judgment was recorded; but the record in this court contains nothing more than a bare statement that the docket showed the rendition of the judgment and its date. It will be assumed in view of the ruling of the court and the absence of any showing to the contrary that it was the same judgment as that described in the writ of scire facias, and that there was no legally sufficient evidence to support the plea of nul tiel record, Ellison v. Clayton, 164 Md 35, 163 A. 695.
Defendant then offered evidence to show that Durendo deposited with Ruth $500 to be applied to the purchase of real estate from one Voloshen upon the understanding that if Ruth, who had contracted in his own name with Voloshen to purchase the property, was unable to consummate the sale, the money was to be returned. An examination showed that Voloshen's title was defective, the proposed purchase was abandoned, and Durendo demanded the return of the money he had given Ruth. Ruth repaid all but $50, and Durendo's action against him in which the judgment involved in this appeal was rendered was to recover that balance.
Evidence was also offered to show that Anthony Dimarco, who appears to have acted as attorney for Durendo in the prosecution of the claim, and who died prior to the trial of this case, at some time after the judgment had been entered by the magistrate had told Ruth that he had gotten the money from Voloshen; that Ruth had deposited $50 with Voloshen on account of the purchase of Voloshen's property and that the reason he had not repaid Durendo was that Voloshen had refused to return that deposit, and that Ruth had agreed that Durendo should sue him, and that he would sue Voloshen, which was done, and that when Dimarco had spoken and said that he had got the money from Voloshen he meant Durendo's money which Ruth had deposited with Voloshen, and which was the basis of Durendo's judgment against Ruth. Durendo denied flatly that he had ever received any payment or satisfaction of the judgment.
It is obvious that upon those facts no question of title to land was involved in the action before the magistrate in which the original judgment against Ruth was rendered, that it was merely a proceeding to recover a debt, and that the magistrate had jurisdiction to hear and decide it. No objection to the jurisdiction of the magistrate was made by the defendant, but on the contrary he agreed to the suit and "accepted the judgment." If the defendant had desired to test the jurisdiction of the magistrate, his remedy was by appeal to the Baltimore City court, Code, art. 5, § 92; Todd v. Frostburg, 141 Md. 694, 119 A. 696, or by petition for a writ of certiorari, seasonably filed, Roth v. State, 89 Md. 527, 43 A. 769; Shippler v. Broom, 62 Md. 318; Judefind v. State, 78 Md. 512, 28 A. 405, 22 L. R. A. 721; Crichton v. State, 115 Md. 426, 81 A. 36. He invoked neither of those remedies, but permitted the judgment to rest unchallenged and unquestioned for nearly twelve years, and raises it now for the first time as a defense to the writ of scire facias. It is well settled that a defendant cannot allege as a defense to a writ of scire facias any matter upon which he might have relied as a defense in the original suit, Poe Prac. § 604, Kemp v. Cook, 6 Md. 307, Brantly's Ed. and notes, Moore v. Garrettson, 6 Md. 447, Brantly's Ed., and notes, and while it has been held in some jurisdictions that as an exception to that rule the question of jurisdiction may be raised, 24 R. C. L. 680, the better view seems to be that even it cannot be litigated on a scire facias.
The case of Legum v. Blank, 105 Md. 133, 65 A. 1071, is not in point, for it turned upon the fact that the title there was in dispute, while in this case there was no dispute as to the title. The defendant offered no prayer or motion raising that question, but we have considered it because of the action of the court in allowing an exception to its oral ruling that there was no legally sufficient evidence in the case to show that the magistrate lacked jurisdiction.
The only other exception in the case relates to the refusal of the court to admit "the papers in evidence in the case of Ruth v. Voloshen, in the Baltimore City Court." The "papers" purport to report the proceedings in an action by Ruth against Voloshen in the people's court of Baltimore City, in which a non pros was finally entered. There was no proof that they constituted the record in that case or that they were authentic, and were for that reason alone properly excluded.
Apart from that objection they were also irrelevant as res inter alios acta. Ruth had testified that as a part of his understanding...
To continue reading
Request your trial