German v. Slade

Robinson, J.,

delivered the opinion of the Court.

Suit was brought on the 23rd of August, 1871, hy the appellee on a promissory note drawn by George J. German and O. German, and endorsed hy Joseph German the appellant.

The parties were all returned summoned to the September Term of Baltimore County Circuit Court, and on the 4th of December following, a judgment hy default was entered against all the defendants, and on the 29th of January, 1872, the judgment was extended for $737.95.

*512 (Decided 4th June, 1875.)

On the 21st of February following, during the Term at which the judgment was rendered, the appellant filed a motion praying the Court to strike out the judgment against him, alleging among other reasons, that he was never summoned and had no knowledge that a suit had been instituted against him, until after the rendition of the judgment.

At the same time he filed an affidavit in which he swears that no summons was served upon him, and that he has a good defence to the action.

An affidavit of John Ditch, depxity sheriff, was also filed, in which he says, he received the writ of summons in this case and served the same upon George J. German and O. German, but did not serve it upon Joseph German the appellant. That the writ was returned “Sd.” in pencil mark opposite each name, and that the return aSd.” opposite the name of the appellant was made through mistake.

The evidence shows conclusively that the appellant was not summoned, and had no opportunity to make his defence to the cause of action.

Under such circumstances the judgment against him must be stricken out.

From some inadvertence it appears that the affidavit of Ditch, the deputy sheriff, was not before the Judges of the Court below when the motion to strike out the judgment was overruled, although it appears from the docket entries that the affidavit was filed in proper time.

Judgment reversed, and cause remanded.