Anders v. Devries, 26 Md. 222

Anders v. Devries

26 Md. 222 | Md. | 1867

Goldsborough, J.,

delivered the opinion of this Court.

The question presented by this appeal is, did the Circuit Court for Frederick county act correctly in overruling a motion to strikeout the judgment appearing in the record?

The motion is predicated on the affidavit of the defendant. The judgment was entered on the 10th day of February, 1882, as of the February term. The form of the judgment as extended by the clerk, indicates it to be by confession, and the defendant was represented by two attorneys. This judgment remained unaffected by any proceeding until the 20th of October following, when the defendant came into Court and, by his counsel, moved to strike it out, as having been entered by mistake, and when he had a bona fide defence.

On this motion, made on the 20th of October, the Court ordered the case to ho continued until the second Monday of February then next. At which term, the defendant *226filed his affidavit alleging that the' judgment was- entered by mistake, and without his knowledge or consent, he> having instructed his counsel that he had a bona fid& defence on the merits. He filed another affidavit during the same term, in which he alleged in addition to what is-contained in the first affidavit, that he had paid part of the-pretended claim, or had a legal set-off for more than $260 It does not distinctly appear whether the motion was made* as of the February term, before the October term was called. The affidavit states it was made during the October term, 1862. If in fast made as of the February term, the-judgment was still under the control of the Court, and liable to-be altered or amended, unless such general authority? was limited by some positive rule. See 12 Md. Rep., 141.

We would infer from the record, that the motion was iu fact made during the October term. In either event, a. sufficient foundation must be laid to sustain the motion, ©specially in the latter case. Has such a foundation been, laid ?

In the case of Keighler vs. The Savage Manufacturing Co., 12 Md. Rep., 415, this Court said, “as to the judgment, prima facie it imports verity, and as to the parties to it, it is conclusive, unless mistake or fraud be shown, and the onus is on those who impeach it.” Commenting on the attempt to show in that case that the ¿judgment was-not an ascertainment of actual indebtedness, but only a. security for so much as might be thereafter ascertained to be due, this Court said, “but to establish such a proposition, in direct conflict with the legal import of the judgment, the evidence should be abundantly full and explicit ;. so full, indeed, as to leave no ddubt on the mind of the Court. Unless evidence of this character be adduced,, the-judgment should be regarded as unimpeached, and remain in full vigor.”

Applying this-exposition, of the sanctity of judgments- te> *227the case at bar, in view of the fact that the defendant was represented.by counsel, that he was under a rule to plead, '( see 3 Gill, 500,} that he relies for the success of his motion upon his own affidavit alone, and the substance of his affidavit being that he had informed his counsel he had a good defence to the action, which they failed to make without any explanation, will not justify this Court in disturbing a ■solemn judgment and depriving the plaintiff of a legal right acquired in due course of lav/, without any fraud or irregularity on his part.

( Decided January 18th, 1867.)

To sanction this motion upon the slight foundation laid to support it, would be a serious disregard of the law as announced by this Court in a serios of uniform decisions. Hee cases cited by the appellees.

The appellant also relies upon the point that the judgment is erroneous because it was mot entered in the mode •prescribed by the 15th sec. of the 29th Art. of the Code. If the defendant’s motion was in fact made during the February term, and the attention of the Circuit Court had been called to this irregularity of the judgment, it would doubtless have ordered it to be corrected. But the point is made for the first time in this Court. Besides applying to it the provision of the 12th sec. of the 5th Art. of the ■Code, we also say, that while the plaintiff might have -appealed because he is deprived of a portion of his judgment by the failure of the Court to embrace in it the interest on the canses of action to the date of the judgment, the ■defendant is not injured by the mode in which it was extended. The judgment is not void though it may he irregular. If the defendant be not injured, this Court is sustained, by numerous cases, in refusing to reverse the judgment. See cases in 2nd Md, Digest, 23. Pl., 131.

Judgment affirmed*