Tiernan v. Hammond

• Decision Date: 05 March 1875
• Citation: 41 Md. 548
• Parties: LUKE TIERNAN v. ARTHUR HAMMOND.
• Court: Maryland Court of Appeals

41 Md. 548

LUKE TIERNAN v. ARTHUR HAMMOND.

Court of Appeals of Maryland

March 5, 1875

APPEAL from the Circuit Court for Anne Arundel County.

On the third Monday in April, 1862, Luke Tiernan recovered in the Circuit Court for Anne Arundel county a judgment against Philip T. A. Hammond, whereon a fieri facias was issued on the 28th of November, 1862, and returned by the sheriff "superseded." On the 29th of December 1862, there was filed by the clerk of said Court a judgment of supersedeas, purporting to have been acknowledged and confessed on the 23rd of November, 1862, by the said Philip and also by Mary A. Hammond and Arthur Hammond, who was at the time a minor, before Dennis Griffith, a Justice of the Peace of said county.

On this judgment a fi. fa. was issued in October, 1863, and returned " nulla bona. " Afterwards Mary A. Hammond died; her death was suggested, 11th February 1873, and a writ of scire facias was issued to revive the judgment, which was returned non est. The writ was renewed 19th February, 1873, and returned " made known."

The defendant, Arthur Hammond appeared at the first term after service and pleaded four pleas.

Issue was joined on the first and second pleas, and demurrer entered to the third and fourth. The demurrer was ruled good with leave to the defendant to institute such further proceedings, or make such motion as he might deem proper. Thereupon Arthur Hammond moved the Court to strike out the judgment of supersedeas as against himself on the ground that he was a minor when it was signed, and filed in support of the motion, an affidavit, the substance of which is set out in the opinion of the Court.

On the 9th of April, 1874, the Court granted the motion and this appeal was taken.

The cause was argued before STEWART, BRENT, GRASON and ROBINSON, J.

Frank. H. Stockett, for the appellant.

If there were fraud practiced by Philip to induce the appellee to confess the supersedeas, such fraud could not be pleaded against the appellant, unless a party thereto, and ignorance on the part of the appellee as to the effect of his act, cannot release him as against the appellant.

The supersedeas was regularly and properly taken and confessed, so far as the records of the Court disclose, and the judgment so confessed having become a record of the Court, against the verity of which no proceeding can be taken, and after so long a time the same cannot be inquired into for any irregularity or defect aliunde.

Nor if defective or irregular on its face, will the Court strike out such judgment after so long a time, and after such laches on the part of the appellee. Kemp vs. Cook, 6 Md., 307; Kemp & Buckey vs. Cook, 18 Md., 130; Sherwood vs. Mohler, 14 Md., 565; Munnikuyson vs. Dorsett, 2 H. & G., 377; Green vs. Hamilton, 16 Md., 326; Montgomery vs. Murphy, 19 Md., 576; Dilley vs. Shipley, 4 Gill, 48.

If the appellee were a minor in November, 1862, that did not render the confession of the judgment void, and he, having failed to plead such minority so long after obtaining his majority, or relying on fraud or other reasons to vacate said judgment, showed such gross laches as no Court would sanction. Key's Lessee vs. Davis, 1 Md., 42; Ridgely vs. Crandall, 4 Md., 435; Kemp & Buckey vs. Cook, 18 Md., 138.

The appellee, by the execution of the supersedeas was estopped from denying his own act and admissions of record, which were expressly designed to influence the conduct of another.

Public policy and good faith deny to a party the right to repudiate his admissions, when they have been acted upon by persons to or against whom they were directed. Alexander vs. Walter, 8 Gill, 240; Stewart vs. Redditt, 3 Md., 67; Glenn vs. Grover, 3 Md., 212; 1 Greenl. Ev., sec. 22.

Admissions, whether true or false, acted on by others, are conclusive against the party making them, in all cases between him and the party he has so influenced. McClellan vs. Kennedy, 8 Md., 230; Gaither vs. Gaither, 3 Md. Ch. Dec., 158; 1 Greenl. Ev., sec. 208.

If the defendant were not technically estopped by his execution of the supersedeas, then, by the rules of evidence, he would not be allowed to testify, or to offer evidence aliunde, to contradict his confessions or admissions of record. Hagan vs. Hendry, 18 Md., 177.

James Revell and A. B. Hagner, for the appellee.

The Court had jurisdiction. Acts 1787, ch. 9, secs. 5 and 6; Art. 75, sec. 38, of the Code.

This jurisdiction is a quasi equitable jurisdiction. Bridendolph vs. Zeller's Exrs., 3 Md., 325; Montgomery vs. Murphy, 19 Md., 576.

The Court can grant relief after the term. Kearney vs. Sascer, 37 Md., 274; Sherwood vs. Mohler, 14 Md., 564; Broom's Legal Maxims, 309, (marg.)

The alleged judgment of supersedeas was void by reason of fraud. Copeland vs. Central Bank, 18 Md., 305.

There never was a judgment of supersedeas against the appellee. Art. 51, sec. 45, and Art. 29, sec. 19 of the Code.

The Act was void for irregularity. Bowes vs. Isaacs, 33 Md., 537.

The case of Kemp & Buckey vs. Cook & Ridgely, 18 Md., 130, is totally different from this. There the minor appeared by attorney to the original judgment, and also acknowledged the judgment of supersedeas. He was fully apprised of the nature and character of the judgment. There was no deceit, fraud, surprise or irregularity alleged in the motion to strike out the judgment.

Questions of laches must be determined according to the circumstances of each case. No general principle is applicable to all. Hanson vs. Worthington, 12 Md., 418.

A party is not estopped by an agreement, not made in such form as the law requires, when a particular form is required. Lammott vs. Gist, 2 H. & G., 433; 1 Md. Digest, 433.

ROBINSON J., delivered the opinion of the Court.

Upon a motion to strike out a judgment after the term is past, the Courts in this State exercise a general equitable jurisdiction, and will therefore consider all the facts and circumstances of the case, and require that the party making the application shall appear to have acted in good faith and with ordinary diligence. Relief will not be granted where a party has been guilty of laches or unreasonable delay. 18 Md., 130.

In this case the original judgment was recovered against Philip T. A. Hammond, and it is a conceded fact, that at the time of signing the paper purporting to be a supersedeas judgment, the appellee was an infant under the age of twenty-one years. That he had the right to avoid the paper thus signed by him cannot be denied, and the only question to be decided, is whether he has lost that right by laches or unreasonable delay.

The judgment of supersedeas was signed by him on the 23rd of ...