Twigg v. Hopkins

• Decision Date: 31 March 1897
• Parties: TWIGG v. HOPKINS ET AL. HOPKINS ET AL. v. TWIGG.
• Court: Maryland Court of Appeals

37 A. 24

85 Md. 301

TWIGG v. HOPKINS ET AL.

HOPKINS ET AL. v. TWIGG.

Court of Appeals of Maryland

March 31, 1897

Cross appeals from circuit court, Allegany county, in equity.

Suit by Richard F. Twigg against William S. Hopkins and others for an injunction. From a decree dissolving the writ as to part of the relief claimed, and making it perpetual as to the residue, both parties appeal. Reversed.

Argued before McSHERRY, C.J., and BRYAN, FOWLER, BRISCOE, and BOYD JJ.

Ferd. Williams, for plaintiff.

J. W S. Cochrane, for defendants.

BRYAN J.

William Hopkins and Thomas Hopkins, doing business as Hopkins & Son obtained a judgment by default against Robert Twigg. In due course the judgment was made final, and the damages were assessed at $365. Twigg filed a bill in equity against the plaintiffs in the suit at law, and obtained a preliminary injunction restraining the collection of the judgment. It was alleged that Twigg was prevented from making a successful defense to the lawsuit by the fraudulent conduct of the elder Hopkins in promising to dismiss it. At the hearing in the court below it appeared that this allegation was not sustained by the evidence. The cause of action on which the judgment was rendered was a written contract whereby Hopkins & Son agreed to sink an artesian well on the land of Twigg for the sum of $2.50 a foot, and also to furnish casing and a windmill pump in consideration of the contract price. And Twigg agreed to pay for the work as it was performed, and to haul the engine which was to be used from Cumberland to the place where the work was to be done and back again for the sum of five dollars, and to furnish coal and water for the working of it. Hopkins & Son alleged that they had bored to the depth of 150 feet, and that they were prevented from the further prosecution of the work by the failure of Twigg to make the stipulated payments. There is a slight difference between the parties as to the depth to which the well was sunk, Twigg alleging that it was only 146 feet deep; but there is no doubt whatever that Twigg was considerably behind in his payments. In his bill he claims a credit of only $48. He had every possible opportunity to appear and defend the suit, but he saw fit to neglect to do so. The contention on the part of Hopkins was that he was entitled to recover the full contract price in consequence of the failure of Twigg to furnish him with the money necessary for the continuance of the work. Twigg might have contested this view of the controversy, but he voluntarily neglected to give any attention to the matter, and therefore must blame himself if the result is unsatisfactory to him. In Green v Hamilton, 16 Md. 317, a judgment by default had been rendered and made final in the absence of the defendant, and it was attempted to set it aside on the ground of fraud deceit, surprise, and irregularity. The allegation of fact was that the judgment was rendered for $1,000, when the plaintiff's own evidence appearing in the record showed that the amount due was not more than about $200. The court said that the facts alleged showed only a reason for a new trial on the ground that the jury had found against the evidence in the cause, and that they did not support the charge of fraud, deceit, surprise, or irregularity; and that it could not go into the circumstances of the case, and perform the office of jurors, and that the judge who tried the cause might, in the exercise of his legal discretion, have afforded relief. It was furthermore said that it was the defendant's own laches that he was not present at the trial, and that the plaintiff ought not to suffer for it. The court pointedly refused to reverse the maxim, "Vigilantibus non dormientibus leges subveniunt." It is well settled that a court of equity will not interfere...