Townshend v. Chew

• Decision Date: 30 June 1869
• Citation: 31 Md. 247
• Parties: TOBIAS G. TOWNSHEND, Use of W. & S. Wyman & Co., Use of R. & W. W. Isaac, Use of John L. Turner, v. WILLIAM B. CHEW and John F. Summers, Terre-Tenants.
• Court: Maryland Court of Appeals

31 Md. 247

TOBIAS G. TOWNSHEND, Use of W. & S. Wyman & Co., Use of R. & W. W. Isaac, Use of John L. Turner, v. WILLIAM B. CHEW and John F. Summers, Terre-Tenants.

Court of Appeals of Maryland

June 30, 1869

Appeal from the Circuit Court for Prince George's County.

The appellant, Townshend, recovered a judgment against the appellee, Chew, at the April Term, 1858, of the Circuit Court for Prince George's County; a scire facias was issued on this judgment against the terre-tenants of the said Chew, returnable to the April Term, 1864, of said court, which was never returned by the Sheriff, and an alias writ of scire facias was issued returnable to the following November Term, which was also never returned by the Sheriff, and a third writ of scire facias issued, returnable to the April Term, 1865, of said court, which was returned "scire feci," and a proper personal appearance was entered for the defendants at that term. On the 11th of April, 1865 a fiat was confessed against the defendants as terre-tenants of certain lands of which the original defendant, Chew, was seized at the date of the original judgment against him in 1858. On the 6th of November, 1865 the first day of the next succeeding term, a motion and affidavit were filed by the appellee, Summers, to strike out the judgment of fiat entered on the 11th of April 1865, because the same had been rendered by surprise, error and mistake. The affidavit showed that the affiant had employed counsel to defend the suit, and had furnished him with a list of witnesses, by whom he expected to prove that the judgment, in the writ of scire facias recited, had been long since fully paid and satisfied; and that the fiat was entered without the knowledge of the affiant or his counsel. The affidavit further showed that the original defendant, Chew, had, subsequent to the rendition of the original judgment, petitioned for the benefit of the insolvent laws, and that the appellee, Summers, had purchased the land of which he was returned terre-tenant, of the insolvent trustee, had paid the purchase-money therefor, and had obtained a deed from said trustee. Turner, the cestui que use, answered the motion to strike out the judgment of fiat, and insisted that the same ought not to be stricken out, because there was no surprise or irregularity in obtaining it, as alleged, and further, that the motion to strike out ought to have been made during the term of the court at...