Smith v. Black

• Citation: 51 Md. 247
• Parties: CHARLES F. SMITH v. GEORGE W. Z. BLACK.
• Decision Date: 26 March 1879
• Court: Court of Appeals of Maryland

51 Md. 247

CHARLES F. SMITH v. GEORGE W. Z. BLACK.

Court of Appeals of Maryland

March 26, 1879

APPEAL from the Circuit Court for Frederick County.

On the 23rd October, 1872, in due course of law at the September Term, 1872, of the Court below, the appellant obtained judgment in an action of assumpsit against the appellee.

The December Term, 1872, ended, and the February Term, 1873 began on the 17th February, 1873, on which day the defendant by his attorney, moved in open Court to strike out the judgment so as aforesaid rendered against him, which motion was entered on the trial docket. The cause was transferred to the stet docket; and on the 7th October, 1875, the plaintiff, by his attorney, moved the Court to reinstate the case on the trial docket, which motion was resisted by the defendant. The motion was set down for hearing on the 8th October, 1875, but it remained on the stet docket till the 11th of May, 1878, when the defendant's attorneys filed their order to the Clerk of the Court, to reinstate the case upon the trial docket, which was accordingly done. On the 17th May, 1878, the defendant, by his attorney, John Ritchie, Esq., filed his motion and reasons for striking out the judgment, and also the affidavits of himself and of his former attorneys, John C Motter and William P. Maulsby, Jr., Esqrs.

The substance of the affidavits and the reasons of the motion are stated in the opinion of the Court. In his motion the defendant offered to deposit with the Clerk of the Court, an amount of money equal to the amount of the judgment, with interest and costs to be paid to the plaintiff, if he obtained judgment after trial of the case upon its merits. The motion was heard on the 17th May, 1878, and on the 3rd July, 1878, the Court, (LYNCH, J.) ordered the judgment to be stricken out, and granted a new trial on condition that the defendant deposited with the Clerk of the Court, on or before 28th August, 1878, the sum of $892.50, with interest and costs, to be applied to the payment of any future judgment the plaintiff might recover in the cause. On 31st July, 1878 the defendant having on the 29th of the same month, paid into Court the sum of $1250, an order was passed making the conditional order absolute, striking out the judgment and granting a new trial. From these orders of the 3rd and 31st July, 1878, the defendant appealed. The cause is further stated in the opinion of the Court.

The cause was argued before BARTOL, C.J., BOWIE, BRENT, MILLER and ALVEY, J.

Milton G. Urner and William A. Fisher, for the appellant.

The appellant maintains that a judgment will not be stricken out, after the lapse of the term in which it was rendered, except for "fraud, deceit, surprise or irregularity." The judgment in this case was not obtained by "fraud, deceit, surprise or irregularity." The case was regularly tried and the judgment was solemnly rendered. The defendant was represented by counsel at the trial, and if he had a defence and failed to inform his counsel of the same, it was his own fault, and affords no ground for striking out the judgment. It was his duty to be present in Court at the trial of the case. The plaintiff was entitled to a trial of his case at the time it was tried, and the absence of the defendant, or one of his counsel, was no legal ground for a continuance. The motion to strike out was not made until long after the expiration of the term at which the judgment was rendered, and was then permitted to lie dormant for more than five years.

There is nothing in the record imputing fraud, deceit or irregularity on the part of the plaintiff, and the only ground upon which the motion to strike out can be based, is a misunderstanding between the defendant and his counsel, and which is clearly chargeable to the negligence of the defendant himself. That the Courts will not interfere with judgments after the lapse of the term, except for fraud or irregularity, is established by a "series of uniform decisions" in this State.

The appellant cited Munnikhuysen, Adm'r vs. Dorsett's Adm'x, 2 H. & G., 374; Sherwood vs. Mohler, 14 Md., 564; Green vs. Hamilton, 16 Md., 317; Kemp vs. Cook, 18 Md., 130; Dorsey vs. Kyle, 30 Md., 512; Taylor vs. Sindall, 34 Md., 38; Hall vs. Holmes, 30 Md., 558; Anders vs. Devries, 26 Md., 222; Sarlouis vs. Firemen's Ins. Co., 45 Md., 245; Craig vs. Wroth, 47 Md., 281.

John Ritchie, for the appellee.

Where a motion to strike out a judgment is made after the term has passed, relief will be granted where the party shows that he has acted in good faith, and with ordinary diligence, and has not knowingly acquiesced in the judgment complained of, or been guilty of laches and unreasonable delay in seeking his remedy. Craig vs. Wroth, 47 Md., 281; Tiernan vs. Hammond, 41 Md., 548; Graff & Gambrill vs. Merchants and Miners' Transportation Company, 18 Md., 364; Montgomery vs. Murphy, 19 Md., 576.

Whether there has been any laches or not depends on the circumstances of the particular case. Hanson vs. Worthington, 12 Md., 441.

A motion for a new trial suspends the judgment, and the successful party is himself chargeable with laches if he does not seek to have it disposed of. Truett & Gill vs. Legg, 32 Md., 148.

In deciding upon an application to strike out a judgment after the term is past, the Court acts in the exercise of its quasi equitable jurisdiction, and will, therefore, properly consider all the facts and circumstances of the case. Kemp & Buckey vs. Cook & Ridgely, 18 Md., 130; Tiernan vs. Hammond, 41 Md., 548; Montgomery vs. Murphy, 19 Md., 576; Hall, et al. vs. Jones' Adm'r, 30 Md., 559; Taylor and Wife vs. Sindall, 34 Md., 38; Post and Barrett vs. Bowen, 35 Md., 232.

It is proper for the defendant to testify in regard to the absence of his attorney, or the delay in making the motion to strike out the judgment. The Court will grant a new trial, where an attorney has appeared without authority, and even where sometimes he has been negligent though the other side has proceeded regularly. Hill vs. Mendenhall, 21 Wall., 453; Blodget vs. Conklin, 9 How. (N. Y.,) Pr., 442; Townly vs. Jones, 28 Eng. C. Law, 287; Neave vs. Milnes, 29 Eng. Law & Eq., 306; Frey vs. Calhoun Co., 14 Ill., 132; Cutler vs. Rice, 14 Pick., 495; Hilliard on New Trials, 420, 421, 422; 2 Wharton on Evid., secs. 1183, 1187; Wharton on Agency, 565, 566, 582; Dorsey vs. Kyle, et al., 30 Md., 512.

MILLER J., delived the opinion of the Court.

This appeal is from an order striking out a judgment after the lapse of the term at which it was rendered. The power of Courts of law to set aside judgments after the term has elapsed, for fraud, surprise, or irregularity in obtaining them is well settled, and the principles which must govern action in such cases have been announced in repeated decisions of this Court. The party seeking such relief must establish his right to it by clear and convincing proof, and he must appear to have acted in good faith and with ordinary diligence. Sarlouis vs. Firemen's Ins. Co., 45 Md., 245; Craig vs. Wroth, 47 Md., 283. In the present case we were greatly impressed with the able and eloquent argument of the appellee's counsel in support of the order appealed from, but after a calm consideration and careful examination of the testimony in the record, we are convinced the judgment ought not to be disturbed. It was regularly entered, and there is no pretence that any fraud was practiced by the plaintiff or his counsel to obtain it. The sole ground on which relief is asked is that the rendition of the judgment was a surprise to the defendant, who had a good defence to the action. In disposing of this question, we shall consider briefly the facts disclosed by the record, and the affidavits filed in support of the defendant's motion.

The suit was instituted on the 6th of December, 1871, by the plaintiff as payee against the defendant as maker of three promissory notes for $250 each. The defendant was duly summoned to the December Term of that year, and appeared by John C. Motter, Esq., his attorney. The declaration was filed on the 1st of January, 1872, and on the 30th of the same month, Mr. Motter filed the usual short pleas of non assumpsit in the form prescribed by the Code. Now it appears by the defendant's affidavit that his defence was that these notes were without consideration, and it is apparent from the facts which he states in reference to the obtaining of the notes, that he knew of this defence when he was summoned, and we infer from what is said in the...