Sheehy v. Sheehy

• Decision Date: 29 May 1968
• Docket Number: 342,Nos. 254,s. 254
• Citation: 250 Md. 181,242 A.2d 153
• Parties: Vincent A. SHEEHY, Jr. v. May J. SHEEHY.
• Court: Maryland Court of Appeals

Page 181

250 Md. 181

242 A.2d 153

Vincent A. SHEEHY, Jr. v. May J. SHEEHY.

Nos. 254, 342.

Court of Appeals of Maryland.

May 29, 1968.

Vivian V. Simpson, Rockville (Simpson & Simpson, Joseph B. Simpson, Jr., H. Algire McFaul, Rockville (William T. Wood, Rockville, on the No. 342 brief only), and Arthur C. Elgin, Washington, D. C., on the brief), for appellant.

James C. Christopher, Bethesda (Robert L. Hillyard, Bethesda, on the No. 342 brief only), for appellee.

Before HAMMOND, C. J., and HORNEY, ^* MARBURY, BARNES, McWILLIAMS, FINAN and SINGLEY, JJ.

MARBURY, Judge.

The two appeals considered here both arise from a single equity case heard before the Circuit Court for Montgomery County, sitting as a court of equity.

On December 22, 1966, the appellee, May J. Sheehy, filed a bill of complaint in which she alleged that she and the appellant, Vincent A. Sheehy, Jr., had entered into an agreement on December 18, 1965, reciting, inter alia, that they were not living together as man and wife and that Mr. Sheehy was to pay his wife the sum of $7,000 per year in monthly payments of $583.30. The bill further alleged that the payments coming due after June 18, 1966, had not been paid, and prayed that the defendant be required to specifically perform the agreement; that the plaintiff be awarded a money judgment for the payments in default; and that the plaintiff be accorded such other and further relief as may be required.

On December 22, 1966, a show cause order returnable on or before January 20, 1967, was issued and directed to the appellant. On January 4, 1967, a return was made as follows:

'Served the within subpoena personally by reading to and leaving copy of same together with a copy of the bill of complaint and order with Vincent A. Sheehy, Jr., this 29th day of December, 1966.

Ralph W. Offutt, Sheriff'

On January 17, 1967, Mr. Sheehy filed a preliminary motion under Maryland Rule 323 entitled 'Motion to Quash Service' by which he appealed through his solicitors for the limited purpose of the motion on the ground that he had not been served personally nor had he been served by having a subpoena read to him and a copy left with him. This motion was supported by an affidavit specifically denying the sheriff's return.

A hearing on the motion was held on January 20, 1967, before Judge Shook, at which testimony was taken from deputy sheriff Day, the deputy who had supposedly served the suit papers. He testified that he had served the papers by reading same to the person within the apartment and posting the papers on the door. He further testified that after attending to some other business he later returned and found that the papers had been removed from the door, although he did not know by whom. After the testimony had been taken Judge Shook denied the motion on the ground that Code (1957), Article 75, Section 92 had been complied with and allowed the defendant fifteen days to plead to the bill of complaint.

The appellant answered and a hearing was held before Judge Shure on June 26, 1967. At this hearing the appellee testified in her own behalf and the appellant, who renewed his motion to quash, did not offer any evidence because of the question of jurisdiction that had been raised by him. The matter was taken under advisement by the court and on July 17, 1967, a decree was filed by Judge Shure ordering the defendant to specifically perform the terms of the agreement and further, entering a money judgment in the amount of $7,000 for unpaid instalments under the agreement.

The appellant then appealed to this Court from the decree of July 17, 1967, which is the basis of appeal No. 254, and the appellee countered on September 6, 1967, by filing a petition for counsel fees in defense of that appeal. The appellant answered denying that the court had jurisdiction to award counsel fees to the plaintiff in any action other than an action for divorce. At the hearing before Judge Levine on October 20, 1967, no testimony was taken and on October 25, 1967, an order was issued ordering the appellant to pay the appellee $500 attorney's fees for her defense of the appeal. The appellant also appealed from this order, which gives rise to appeal No. 342.

On the appeal from the decree ordering the specific performance of the agreement and entering the money judgment there is only one question raised, namely, whether the defendant had been personally served with process in accordance with the provisions of Article 75, Section 92. If the defendant was not properly served the court below had no jurisdiction and the decree issued was invalid and without significance. Little v. Miller, 220 Md. 309, 153 A.2d 271; Thomas v Hardisty, 217 Md. 523, 143 A.2d 618; Wilmer v. Epstein, 116 Md. 140, 81 A. 379. To have been valid the service must have been personal and the fact that the defendant may have had actual knowledge of the suit against him would not cure a defective service. Little v. Miller, supra; Harvey v. Slacum, 181 Md. 206, 29 A.2d 276; Wilmer v. Epstein, supra; 2 Poe, Pleading and Pratice, Section 62 (Tiffany Ed.). It is true, as the appellee points out, that a proper return is prima facie evidence of valid service of process and a simple denial of service by the defendant is not sufficient to rebut the presumption arising from such a return. Weinreich v. Walker, 236 Md. 290, 203 A.2d 854; Little v. Miller, supra. In the instant case, however, there was much more than a simple denial of service by the defendant. At he hearing before Judge Shook, the deputy sheriff who claimed to have made the service, testified that he made it at...