78 Md. 210 | Md. | 1893
delivered the opinion of the Court.
On the twenty-seventh day of April, 1892, a judgment was rendered in the Circuit Court for Kent County against William H. Coulbourn in favor of Benjamin F. Fleming. At the succeeding term of the Court, on the eighteenth day of October in the same year, Coulbourn filed a motion to strike out the judgment. Coulbourn had been returned “summoned” in regular form, and
The judgment is in all respects regular in form, and must stand and be effective to all intents and purposes, unless annulled and vacated by the authority of the Court, exerted in the due and established course of proceeding. While judgments must not be interfered with except for strong and convincing reasons, yet, if sufficient cause is clearly shown, the Courts will not hesitate to set them aside. In this case it is alleged that the defendant was not summoned, and that he has been condemned without a hearing, and without an opportunity
In this case there was no bill of exceptions. Undoubtedly the rulings of the Court on the ore ienus incidents of the trial below may appropriately be embodied in a bill of exceptions, and in this mode be brought before the Appellate Court for review. In Nesbitt vs. Dallam, 7 Gill & Johnson, 494, this practice was adopted on the hearing of a motion to set aside a sheriff’s sale. This Court there decided that the Statute of Westminster which allowed a bill of exceptions did not restrict the privilege to trials before a jury. In this State, however, according to a long established practice, it is not obligatory to take a bill of exceptions in summa.iy proceedings before the Court, such as motions to quash attachments, to strike out judgments, and such like matters. Many cases of this kind may be cited from our Reports where there was no bill of exceptions. We may mention Munnikhuysen vs. Dorsett, 2 Harris & Gill, 374; Green vs. Hamilton, 16 Md., 317; Graff & Gambrill vs. Merchants and Miners’ Transp. Co., 18 Md., 364; Kemp & Buckey vs. Cook & Ridgely, 18 Md., 130; Montgomery vs. Murphy, 19 Md., 576; May vs. Wolvington, 69 Md., 117; Powhatan Steamboat Co., Garn. of Clyde vs. Potomac Steamboat Co., &c., 36 Md., 238. All of these cases except the last, were motions to strike out judgments. When the motion rests on questions of fact, the evidence ought to be certified in such manner as will show the Appellate Court with certainty what proofs were submitted to the Court below. It was said in Lambden vs. Bowie, 2 Md., 335, that the manner of taking the proof may be regulated by consent of the parties, or directed
Order reversed, and, cause remanded.