Tabler v. Castle

• Decision Date: 17 June 1858
• Citation: Tabler v. Castle, 12 Md. 144 (Md. 1858)
• Parties: WM. TABLER, of Lewis, v. JOHN A. CASTLE.
• Court: Maryland Supreme Court

12 Md. 144

WM. TABLER, of Lewis, v. JOHN A. CASTLE.

Court of Appeals of Maryland.

Jun. 17, 1858

A creditor's bill was filed against a devisee for the sale of the real estate of the testator, to pay debts. The defendant, having been duly summoned, failed to appear, and an interlocutory decree was obtained against him, proof taken, and final decree for a sale duly passed. During the same term the defendant filed a petition asking that this decree might be opened and his answer let in, alleging that there was some defect in the service of the summons, and the decree passed in consequence of some mistake and surprise, and that the claim of the complainant had been fully paid and settled by the testator, in his life time. The deputy sheriff made affidavit that he read the summons to the defendant, distinctly informed him of its contents and object, and that defendant replied thereto, " I will attend to it," or " will see about it." But it was proved that the bill was filed upon the same cause of action (a single bill) on which the complainant, six years before the testator's death, had instituted a suit at law, which suit was entered on the docket " settled, " and the cause of action, some months after the testator's death, was, at the instance of the complainant withdrawn and delivered to him by the clerk, under an order of the court, but why or for what purpose, does not appear. HELD:

That in view of the affidavit of the deputy sheriff, the decree ought not to be opened upon the allegations of defect in the service of the summons, and of mistake or surprise, but in view of the entry " settled, " and the circumstances under which the cause of action was withdrawn the defendant is entitled to relief, such facts tending strongly to show there was misapprehension on his part, which prevented his appearance and answer, and that such failure was not the result of wilful negligence, or intentional disobedience to the command of the summons.

According to the chancery practice of this State, a decree is not considered as enrolled until the end of the term in which it has been passed.

APPEAL from the Equity Side of the Circuit Court for Frederick county.

This appeal was taken from an order of the court below, (NELSON J.,) dismissing two petitions filed by the appellant, for the purpose of having the decree which had been passed against him in the case opened, and his answer to the bill let in. The proceedings, and all the facts of the case, are fully stated in the opinion of this court.

The cause was argued before LE GRAND, C. J., ECCLESTON and BARTOL, J.

Jos. M. Palmer for the appellant:

1st. Under all the facts and circumstances of this case, the decree passed on the 20th of August 1855, ought to be opened and annulled. It is, without doubt, a well settled principle both of courts of law and equity, that judgments or decrees obtained by mistake or surprise, will be opened at any time during the term in which they are obtained, upon affidavits, and the party let in to try the case upon the merits, if it shall appear to the court that the party so surprised has been injured, and has a good defence upon the merits. Why should it not be so? It would seem to be consistent with all the well settled principles of equity, that where a defendant has omitted to appear to a bill and file his answer, according to the rules of the court, through a misunderstanding and ignorance of the true facts, which make it his duty to appear and answer, and a decree by default has been obtained against him, that such a decree, under such circumstances, should be opened and set aside, to enable him to appear and try his case upon its merits. It would be difficult to imagine a stronger case than the one under consideration. The defendant shows, by his affidavit, that he does not owe the money claimed; that the debt had been " settled " in court in 1846; that the single bill in question was given by mistake, and is not due and owing to the complainant; and that he is able and ready to prove that the claim is unjust, and that he does not owe the money. The application to open the decree was made during the July term of the court, while it was in actual session, and the same term in which the decree was passed. The decree was not enrolled; for, in this State, a decree is not considered as enrolled until the term has passed, and until then the court has the absolute control over it, and can alter and change it in any way, so as to promote the ends of justice. If the court had not this power, it would cease to be a court of equity. In the case of Oliver vs. Palmer & Hamilton, 11 G. & J., 149, it is said that the act of 1820, ch. 161, " did not design to give one party advantage over the other, and in all cases to make the decree conclusive in the cause, although his failure to appear was not the result of negligence, or where it might have proceeded from a providential cause; whenever the defendant shall be enabled to present such a case, he would have a right to be let in, to develope the merits of his case, and a refusal of the court below to permit him to do so, would, in our opinion, be error." In the case of Burch vs. Scott, 1 Bland, 120, the chancellor says: " It has been the long established usage and law of the court of chancery, to consider all its orders and decrees as completely within its control, and open to be altered, revised or revoked during the whole term at which they are passed, on motion or by petition." Many other authorities might be cited to sustain the same general principle. In this case it fully appears by the affidavit of the appellant that he has merits, and that the decree was obtained by surprise; and if the court be satisfied of that fact, the decree will be stricken out, and the party let in to try the cause upon the merits. No injury could result from such a course, but it would be promotive of justice, and prevent absolute injury and, perhaps, ruin to the defendant.

2nd. The short copy of the judgment of Castle against the executor of Peter Tabler, deceased, exhibited in this case by Castle, can have no influence upon the court, in the determination of the questions involved in the cause. 1st. The short copy of the judgment is not evidence, being excepted to, and ought to be considered as out of the record. 2nd. It is a well settled principle of law, in this State, that a judgment obtained against an executor, does not bind the real estate of the deceased, and is not even prima facie evidence against the heir or devisee in any case. 4 H. & J., 270, Duvall vs. Green. 3 G. & J., 259, Gaither vs. Welch. 6 G. & J., 4, Collinson vs. Owens. The judgment which was entered up against the executor, was considered as a mere matter of form. It was only for assets quando acciderient, and the full record of the case would have exhibited the fact that the defendant pleaded nul assets ultra.

Wm. P. Maulsby for the appellee:

The decree in this case was obtained in strict accordance with the provisions of the act of 1820, ch. 161, and with the rules of the court which passed it. The proof is full and clear. The proceedings, so far from being indecently hurried, were marked by leisurely deliberation, and are not subject to any of the animadversions of the court in 11 G. & J., 440. The action of the court on the petition of the appellant to open the decree, was to be regulated by a sound discretion, to be exercised according to law, and is subject to revisal by the appellate court. 1 G. & J., 393, Burch vs. Scott. 11 G. & J., 147, Oliver vs. Palmer & Hamilton. But the true question is, was good cause addressed to the sound, legal discretion of the court, for vacating this decree, and letting in the appellant to answer and make defence, as if he had appeared before final decree? The cause alleged is, that the decree was obtained by surprise and mistake, and that the appellant had, and could have shown, a good defence on the merits, if he had appeared and answered before decree, and his prayer for leave to take proof, is not to show surprise, mistake or fraud, but to show that he had a good defence on the merits; that is to say, he seeks in this indirect mode to get into the record the same proof, and none other, which he might have offered (if he had it) if he had appeared and answered before decree, for the purpose of " fortifying and strengthening his affidavit as to the surprise and mistake. " The only mistake and surprise alleged, are in regard to the service of the subpœ na, and on this point he is careful not even to allege that it was not served, but only that if it was, he did not understand it. The act of 1820, provides no remedy for a party who does not understand a subpœ na, especially where it is distinctly read to him, and he is informed of the contents and object of it, and replies, " Very well, I will attend to it," as is shown by the affidavit of the deputy sheriff to have been the case in this instance. In none of the proceedings is there an allegation by the appellant that the subpœ na was not served, or a prayer for leave to take testimony to prove that it was not served. It is not contended that a case might not be presented in which, under the act of 1820, a defendant might not be let in to appear and answer, even after decree, as where it appeared clearly to the court that his failure to appear and answer before decree, was not the result of negligence, or proceeded from a providential cause. 11 G. & J., 149. But it is contended that this is not such a case; that in this case, instead of its being shown by the appellant that his failure did not result from negligence, or did result from a providential cause, or any cause addressing itself to the sound discretion of the court, it is shown by the record that,...