Smith v. Black

Miller, J.,

delived the opinion of the Court.

This appeal is from an order striking out a judgment after the lapse of the term at which it was rendered. The power of Courts of law to set aside judgments after the term has elapsed, for fraud, surprise, or irregularity in obtaining them is well settled, and the principles which must govern action in such cases have been announced in repeated decisions of this Court. The party seeking such relief must establish his right to it by clear and convincing proof, and he must appear to have acted in good faith and with ordinary diligence. Sarlouis vs. Firemen’s Ins. Co., 45 Md., 245 ; Craig vs. Wroth, 47 Md., 283 . In the present case we were greatly impressed with the able and eloquent argument of the appellee’s counsel in support of the order appealed from, but after a calm consideration and careful examination of the testimony in the record, we are convinced the judgment ought not to be disturbed. It was regularly entered, and there is no pretence that any fraud was practiced by the plaintiff or his counsel to obtain it. The sole ground on which relief is asked is that the rendition of the judgment was a surprise to the defendant, who had a good defence to the action. In disposing of this question, we shall consider briefly the facts disclosed by the record, and the affidavits filed in support of the defendant’s motion.

The suit was instituted on the 6th of December, 1871, by the plaintiff as payee against the defendant as maker of three promissory notes for $250 each. The defendant was duly summoned to the December Term of that year, and appeared by John C. Motter, Esq., his attorney. The declaration was filed on the 1st of January, 1872, and on the 30th of the same month, Mr. Motter filed the usual *252 short pleas of non assumpsit in the form prescribed by the Code. Now it appears by the defendant’s affidavit that his defence was that these notes were without consideration, and it is apparent from the facts which he states in reference to the obtaining of the notes, that he knew of this defence when he was summoned, and we infer from what is said in the affidavit of Mr. Motter, that he also knew what the defence was at the time the pleas were filed. The case was then continued from term to term until the September Term, 1872, when it stood regularly upon the trial docket. Some weeks before the commencement of this term the defendant requested William P. Maulsby, Jr., Esq., to assist in the trial of a case which he then had pending in Court, and Mr. Maulsby replied that he would. This was all that passed between them, and Mr. Maulsby never at any time prior to the judgment had any further conversation with, or received any information from the defendant in regard to the case. At the call of the trial docket at the commencement of the term, Mr. Maulsby entered his appearance with Mr. Motter, as a matter of course, but did not consult or inform Mr. Motter thereof. It has been argued,that Mr. Maulsby having been engaged merely to assist in the trial of the case, had no authority to enter his appearance when the docket was called. But in our judgment a request to assist at the trial and his agreement to do so, was a full justification for this action by Mr. Maulsby. We have no doubt that by such employment the relation of client and attorney as to this case was fully established between them, and authorized the latter to appear as attorney in the case, and have his name so entered on the docket. After the term had continued more than a month, a case was taken up, the trial of which both Mr. Maulsby and Mr. Motter state, they expected would consume the remainder of the time which the Court had signified would be devoted to the trial of cases at that term, and such *253 was the general understanding of the bar. That case, however, was terminated abruptly, and the Court proceeded with the call of the docket, and this case was reached. The plaintiff was ready, and pressed for a trial as he had the undoubted right to do. Mr. Motter was not in Court, and Mr. Maulsby, not having, as he states, any legal ground for a continuance was constrained to go to trial; and, being ignorant of the facts on which a defence was to be made, and having neither client or witnesses at hand, and not having the faintest idea of any desire or intent on the part of the defendant, to have the case removed, he was obliged to yield “the judgment on proof by the plaintiff of the defendant’s signatures to the notes, and the judgment was accordingly entered for the plaintiff for the amount of the notes and interest. This was done on the 23rd of October, more than a month after the commencement of the term. The defendant had made no preparation for trial by having witnesses summoned to sustain his defence. But in his affidavit he states that at the term at -which the case was set for trial, he was absent in Virginia, attending to some important business, where his presence was indispensable, and that he prepared and and forwarded by mail to his attorney, Mr. Motter, an affidavit to the effect that he had reason to believe that he could not obtain justice in Frederick County at that time,' upon which he was entitled to a removal of the cause, that he was informed this affidavit reached Frederick on the day on which Mr. Motter was called away from business by the death of his father, and that during his absence the case was called, and Mr. Maulsby appeared as counsel and tried the case; that the facts of the case had never been stated to Mr. Maulsby, and he could not properly try the same, deponent having said nothing to him at any time in regard to it, further than that he had a case in Court, in which he'wished his assistance when it came to trial, the case having long previously been committed to *254 Mr. Motter. In his affidavit Mr. Motter states that a few days prior to the trial, he received from the defendant by mail, after the adjournment of Court for the day, a motion and affidavit for the removal of the case, which motion he proposed to file when the case toas called for trial, but that early the next morning he was called to his father’s house in Emmittsburg, and was not present when the case was so called, and did not therefore file the same. He does not say he was called away at this time, either by the death or illness of his father. In another part of his affidavit, it appears that his father did not die until the 7th of December, and he left Frederick on the 8th of that month to attend his funeral.

These are all the facts preceding the judgment necessary to be stated, and it seems to us very plain that it was rendered against him through the defendant’s own fault and negligence. He was in default in having made no preparation for the trial by the summoning of witnesses if he intended to have the case tried and not removed. He was in greater default in not communicating to Mr. Maulsby the defence upon which he intended to rely after having employed him to assist in the trial. If his intention was, as it appears to have been, not to have the case tried, but to have it removed, he was in gross default in not having prepared and forwarded his motion and affidavit at an earlier period of the trial term, and above all, in not communicating to Mr. Maulsby the fact of his wish or intention to have the case removed. His counsel, Mr. Motter, was also in fault in not leaving the motion and affidavit with the Clerk or his colleague, Mr. Maulsby, or sending it to one of them. In fact the inference is forced upon us that the purpose of the defendant, as well as of "his counsel, Mr. Motter, was to secure as much delay as possible. For that purpose they were willing to take the chance that the case would not be reached at that term, and to withhold the motion for removal until the moment *255 the case was called for trial and the trial pressed and demanded by the other side. We do not mean to say there is any thing wrong in this, but it was an experiment that required for its success the utmost vigilance. If they have been defeated in this struggle for delay through their own miscalculation of chances, or by their own fault or negligence, that surely affords them no equitable ground for asking the Court to set aside the judgment and deprive the plaintiff of his legal rights secured in due course of law, without any fraud or irregularity on his part. Entertaining these views of the case we are clearly of opinion the judgment must stand.

(Decided 26th March, 1879.)

This dispenses with the necessity of considering the question of laches in making and prosecuting the motion to strike out, as well as the fact that the defendant has, under the requirement of the order granting the motion, paid into Court the amount of the judgment with interest and costs, to be applied to the payment of any future judgment the plaintiff may recover in the cause. If the case made out by the facts and affidavits were such as to render it doubtful whether the motion ought not to be granted, this payment of the money into Court might turn the scale in the defendant’s favor, but it can have no weight in a case where the proof altogether fails in establishing any equitable ground for relief.

It follows that the order appealed from must be reversed.

Order reversed, and record remanded.