Temple Hill Baptist Church, Inc. v. Dodson

• Decision Date: 12 November 1970
• Docket Number: No. 72,72
• Parties: TEMPLE HILL BAPTIST CHURCH, INC. v. Philip F. DODSON.
• Court: Maryland Court of Appeals

Page 515

259 Md. 515

270 A.2d 802

TEMPLE HILL BAPTIST CHURCH, INC. v. Philip F. DODSON.

No. 72.

Court of Appeals of Maryland.

Nov. 12, 1970.

On May 2, 1968, Dodson filed a motion for judgment of condemnation absolute against the garnishee Church. A hearing date was set by Judge Shook on June 26, 1968. On August 9, 1968, a hearing was held in open court before Judge Shearin. Neither the defendants nor their attorney appeared. There is a docket entry on August 9, 1968, stating: 'No appearances or plea by Defendants although service was made.' The trial court thereafter on the same day directed the entry of judgment absolute againstt he garnishee Church for $2,337.33 with interest from February 24, 1956. This judgment absolute was duly entered with costs.

On October 10, 1968, the garnishee Church moved to set aside the judgment absolute and to quash the attachment, submitting points and authorities as well as a supporting affidavit of Adams. In the affidavit, it is stated by Adams that he is pastor of the Church, the garnishee named in Law No. 23634, and is duly authorized to make the affidavit on behalf of the Church. He stated that the default in this case was not willful, and that the service was actually made upon Adams individually, there being nothing in the 'warrant or service to notify the church or to notify * * * Adams that he received service in his capacity as Trustee for the church rather than as the individual judgment debtor.' It was for this reason that the Church made no appearance in the case. There is no record of any service upon or notice to any other officer or trustee of the Church other than the judgment debtor himself, Adams. Because of the proceedings in the first appeal to this Court, which resulted in the awarding of a new trial, Adams avers that he did not understand that a new action by the same plaintiff in the same cause of action to attach the property of the Church would lie and, therefore, did not understand that an appearance by the Church was required by the attachment laid in the hands of Adams individually on February 20, 1968. He also stated in the affidavit that the inclusion of $405.36 for the costs of the first appeal in the costs included in the judgment absolute before a new trial was held was 'untimely irregular, and in violation of the order of the Court of Appeals.'

On October 15, 1968, Judge Shook, without a hearing, struck out the judgment of condemnation absolute and quashed the attachment in Law No. 23634. Dodson on October 22, 1968, filed a motion to strike out Judge Shook's order of October 15, alleging that the judgment absolute had been enrolled and further that such an order could only be granted after a hearing. The Church filed an opposition to Dodson's motion to strike. Upon Dodson's petition, Judge Levine passed an order on October 25, 1968, requiring the Church to show cause why the relief prayed for in the motion of October 22 should not be granted and setting the matter for a hearing on November 8. After that hearing, Judge Levine struck out the order of October 15.

On November 21, 1968, Judge Levine granted the Church's motion of November 19, 1968, and ordered a stay of proceedings to advertise and sell the property of the Church until a hearing could be held upon its motion, filed October 10, 1968, to set aside the judgment of condemnation absolute and to quash the attachment issued by Dodson on his enrolled default judgment. The second appeal in this matter came about at this point as Dodson challenged this staying order of November 21, 1968. See Dodson v. Temple Hill Baptist Church, 254 Md. 541, 255 A.2d 73 (1969). This Court affimred the order filed November 21, 1968, granting the stay and required Dodson to pay the costs of the second appeal. It was not found necessary to pass upon the question of the finality of the order and consequent right to appeal as the Court was of the opinion that the motion was within the sound discretion of the trial court and no abuse of that discretion was either alleged or proven.

The hearing on the Church's motion to set aside the judgment of August 9, 1968, and quash the attachment was held on December 16, 1969, before Judge Levine.

At the hearing, Adams testified that he was pastor of the Church and was also a trustee on the Board of Trustees of the Church. He did not send the writ of attachment served on him because he thought it was intended for him personally and not for the Church. He expected his counsel to get in touch with him as he had done theretofore. He admitted, however, on cross-examination that in two earlier attachment matters he had taken the papers to his counsel after service.

During the course of the hearing, Judge Levine asked counsel for Adams:

'THE COURT: Mr. Taylor, let me once again put the question to you that I did earlier. Is there any contention that Doctor Adams was not a proper person whom service could be made upon?

'MR. TAYLOR: Your Honor, I think he would be the proper person because he is a trustee. I assume as a trustee he is an officer of the corporation and I assume that the general rules of corporation law would apply, also to religious corporations. We are not contending that service on Doctor Adams would not have been proper had it been designated. The contention that we are making that service was improper because there was not sufficient designation, a third party to the dispute between Philip Dodson and William B. Adams, the only purpose of my eliciting these answers to indicate there would be other people who could have been served if the Plaintiff chose to do so.'

At the conclusion of the hearing Judge Levine rendered an oral opinion from the bench. He was of the opinion that the item of $405.00, ¹ costs of the appellant Dodson in the first appeal should not have been included in the item of $652.82 costs which were part of the judgment of condemnation absolute in that this item was to abide the result of the new trial awarded in the first appeal which trial had never been held. Judge Levine concluded that, in view of the provisions of Maryland Rule 625 requiring a showing that a party moving to set aside an enrolled judgment must show fraud, mistake or irregularity and that he must have a meritorious defense and have acted with ordinary diligence, he could not set aside the judgment of condemnation absolute as reduced by the $405.00, because Adams had not acted with ordinary diligence. He accordingly on December 16, 1969, overruled the Church's motion to set aside the judgment of condemnation absolute, as reduced by $405.00 and to quash the attachment. The costs included in the judgment of condemnation absolute were reduced from $652.86 to $247.86 and the judgment was reduced from $2,337.33 to $1,932.33. The Church now challenges this December 16 order of Judge Levine thus giving rise to the third and current appeal in this matter.

(1)

In regard to the deduction of the $405.00 item from the judgment of condemnation absolute, Dodson, the appellee, contended before us that this action by the lower court was in error and that we should restore that amount to the judgment of condemnation absolute. We do not find it necessary to pass upon this contention inasmuch as Dodson took no cross-appeal and the issue is not before us for decision. See Glen Alden Corp. v. Duvall, 240 Md. 405, 421, 215 A.2d 155, 167 (1965), and prior Maryland cases cited in that opinion.

(2)

Maryland Rule 625 provides:

'For a period of thirty days after the entry of a judgment, or thereafter pursuant to motion filed within such period, the court shall have revisory power and control over such judgment. After the expiration of such period the court shall...