Abell v. Simon ex rel. Simon, 49 Md. 318

Abell v. Simon ex rel. Simon

49 Md. 318 | Md. | 1878

Robinson, J.,

delivered the opinion of the Court.

It has been decided repeatedly by this Court that in support of a motion to strike out a judgment after the term at which it was entered has passed there must be clear and satisfactory proof of fraud, mistake or surprise, and it is hardly necessary to state again the obvious reasons of public policy and of private right in which this well settled rule is founded. Katz vs. Moore, 13 Md., 566; Sherwood vs. Mohler, 14 Md., 564; Montgomery vs. Murphy, 19 Md., 576; Anderson, Garnishee vs. Graff, 41 Md., 601, 608; Sarlouis vs. Firemen’s Ins. Comp’y, 45 Md. 245.

*323There is no evidence here of fraud practised on the defendant, and the question and- the only question, is whether there is such proof of mistake or surprise as will justify the Court in setting aside the judgment; and this resolves itself into whether the attachment was served and the appellant summoned to appear as garnishee of Riddle. If the appellant was summoned and had an opportunity to make his defence and neglected to do so, and judgment was regularly entered, he will not now he heard to say, after the term has passed, that it was obtained by mistake or surprise.

Now in support of the judgment we have, in addition to the sheriff’s return, the affirmative testimony of the deputy sheriff himself, who says he remembers distinctly having served the writ and having told the garnishee that a judgment would be entered against him, unless he appeared and attended to the matter

The garnishee, on the other hand, remembers that an attachment was laid in the hands of the affiant and of his father, A. S. Abell, that he, the affiant, appeared to that suit and it was subsequently entered “off.” He has no recollection that an attachment was laid in this case and does not believe it was, and denies that he had anything in his hands due to Riddle at that or any other time.

The burden of proof was upon the garnishee assailing the sheriff’s return, and it was incumbent upon him to show by evidence of the most satisfactory character, that he had not been summoned, and it can hardly be said that his negative testimony ought to prevail against the sworn return of an officer, made in the regular discharge of his duty and in favor of which every presumption is to be made, and supported too by the positive testimony of the officer himself.

We are obliged therefore to say that the record shows the garnishee was summoned. He had his day in Court, and an opportunity of making his defence to the demands *324of the plaintiff. If he failed to do so, the fault lies at his door, and the Court has no power after the term has passed to strike out the judgment. It is most desirable of course that there should be an end to litigation, and a judgment is presumed to be a settlement of all matters in dispute in that particular case; and once entered, parties are no longer under the necessity of preserving the evidences upon which their claims rested. By it new rights are required, and if stricken out other claims may intervene, and the plaintiff may not only lose his lien, but in many cases the entire debt. The garnishee denies he had anything in his hands liable to this attachment, and it is therefore a hard, very hard case, but to strike out this judgment on a motion made more than two years after it was rendered, and when it appears the garnishee was regularly summoned, would be to break down all safeguards which the law has so wisely thrown around judicial proceedings.

(Decided 27th June, 1878.)

The order of the Court below overruling the motion to strike out the judgment, and to quash the execution thereon, will be affirmed.

Orders affirmed.