Tyrrell v. Hilton

• Decision Date: 13 December 1900
• Citation: 48 A. 55,92 Md. 176
• Parties: TYRRELL v. HILTON et al.
• Court: Maryland Court of Appeals

48 A. 55

92 Md. 176

TYRRELL v. HILTON et al.

Court of Appeals of Maryland

December 13, 1900

Appeal from circuit court, Harford county.

"To be officially reported."

Judgment by confession was entered in favor of William H. Tyrrell against Charles S. and Anna M. Hilton, and from an order striking it out the former appeals. Reversed.

Argued before McSHERRY, C.J., and FOWLER, BRISCOE, PAGE, BOYD PEARCE, and SCHMUCKER, JJ.

Stevenson A. Williams, for appellant.

Fred R Williams and Jas. A. Lyle, for appellees.

PEARCE J.

This is an appeal from an order of the circuit court for Harford county striking out a judgment entered by confession during the recess of court. The cause of action is a sealed obligation from the appellees to the appellant for $1,850 dated April 15, 1895, and payable two months after date containing the following authority for the confession of judgment thereon: "And we do hereby confess judgment for the above sum, with interest and cost of suit." Judgment was entered thereon July 24, 1895, upon filing with the clerk of the circuit court a titling of the case, the sealed obligation constituting the cause of action, and an agreement for the entry of a judgment for $1,735.39 and costs, signed by S.A. Williams, attorney for plaintiff, and by Fred R. Williams and James A. Lyle, attorneys for defendants, together with an order from plaintiff's attorney to docket suit as entitled, file the papers mentioned, and enter judgment accordingly, and execution was issued the same day. On August 5, 1895, the appellees filed a bill in equity against the appellant and the sheriff, alleging that a partnership previously existing between Charles S. Hilton and Tyrrell was dissolved April 5, 1895, and that the obligation given by the appellees to Tyrrell was for the purchase by Hilton of Tyrrell's interest in the partnership, and that Tyrrell, by means of false and fraudulent statements as to the assets and liabilities of the firm, caused Hilton to believe that one-half of the net assets over and above all liabilities amounted to the sum of $1,850, and thereby induced him to execute and deliver the obligation in question, whereas the one-half of said net assets, as he had recently discovered, was very much less than $1,850, and that, after crediting certain payments on the obligation admitted by Tyrrell, there was but $392.72 due thereon, which had been tendered to the sheriff and had been refused, and which they now tendered themselves ready to pay or bring into court; and they also charged that the judgment was confessed without authority from them, and without their assent, and that they had no knowledge of its entry until notified of the execution by the making of the levy. The bill prayed for surrender of the note and satisfaction of the judgment upon payment of $392.72, for an injunction to restrain sale by the sheriff, and for general relief. Tyrrell answered, denying all fraud and misrepresentation, and alleging that Hilton, with full knowledge of the condition of the firm and of the value of the assets, purchased his interest for the amount of the obligation. The injunction was granted, but for some unexplained reason the testimony was not concluded until late in 1898 or early in 1899, and on December 14, 1899, the bill was dismissed; the court holding that the proof did not warrant any relief prayed, but saying it had no doubt "the judgment was entered without jurisdiction, and was void from the beginning," and suggested that, if complainants were liable to suffer any wrong, relief could be obtained on proper application in the court in which the judgment was entered. Thereupon, on January 23, 1900, this motion was filed in that court to strike out the judgment: First, because it was obtained by fraud, deceit, surprise, and irregularity; second, because it was entered without any authority of law, they having neither assented thereto themselves, nor having authorized any attorney to do so; and, third, because at the time it was entered they had, and still have, a good and bona fide defense thereto, of which they were deprived by the unauthorized entry of judgment, and which they promptly asserted in the equity proceedings mentioned. This motion was heard upon "an agreement [in writing] as to facts and testimony," which provided that the testimony of certain named witnesses taken in the equity proceedings, together with the bill, answer, opinion, and decree of court in that case "should be used and considered as evidence at the hearing of the motion." At the hearing upon this "agreement as to facts and testimony" the judgment was stricken out, and hence this appeal. No appeal is shown by the record to have been taken from the decree in equity.

The appellees' first contention is that there is no such record of the proceedings in the court below as will enable this court to review its action, because there is no bill of exceptions embodying the facts, without which this court cannot be put in possession of the evidence and of the action of the lower court thereon. No authorities for this position are found on the brief, but we were referred at the argument to several, none of which, in our opinion, sustains the position taken. Every paper specified in the agreement, and the full testimony from the equity case of every witness named in the agreement, are set out at length and duly certified by the clerk immediately under the agreement; and these matters are, to all intents and purposes, made a part of the agreement. It was clearly only a matter of convenience to counsel that they were not actually incorporated in the agreement so as to precede, instead of following, their signatures; and the clerk therefore properly certified that the record transmitted was a "full, true, and complete transcript of the proceedings in the above-entitled case, as agreed upon between the counsel for plaintiff and defendants," and the authorities amply sustain this method of presenting the testimony in cases like the present. In Dumay v. Sanchez, 71 Md. 508, 18 A. 890, Judge Alvey says: "The practice in this state is well settled as to the manner of presenting cases on appeal from rulings on summary motions to quash, or to set aside process. As in all other cases where extrinsic evidence is introduced at the trial, the facts must be properly presented in some authenticated form; and the mode of presenting them is either by bill of exceptions, or by agreed statement of facts, or by depositions taken under the authority of the court, and reduced to form and authenticated, and filed in the cause." And he cites numerous illustrations of each method. In Coulbourn v. Fleming, 78 Md. 215, 27 A. 1041, which was a motion to strike out judgment, there was no bill of exceptions, and Judge Bryan said: "In this state, according to a long-established practice, it is not obligatory to take a bill of exceptions in summary proceedings before the court, such as motions to quash attachments, to strike out judgments, and such like matters. *** In the present case the transcript of the record contains a statement of evidence, which, by written agreement filed in the cause, counsel admit was given at the hearing of the motion to strike out the judgment, and, if we understand the agreement, was approved by court as correct." And in Main v. Kinzer (not yet reported) 46 A. 1070, Coulbourn v. Fleming was considered and confirmed. We cannot, therefore, refuse to consider the appeal.

If this judgment was entered "without jurisdiction, and is void from the beginning," as was held below, it must be stricken out. Freem. Judgm. § 98, and cases there cited. But in such cases the rule seems to have...