102 A. 763 | Md. | 1917
This appeal is from a decree of the Circuit Court of Baltimore City dismissing the bill of complaint of the appellant, which was filed for the purpose of having two magistrates' judgments, recovered against him by Edwin M. Wilmer, one of the appellees, declared void and the execution thereof enjoined.
The bill alleges that the appellant was indebted to Edwin M. Wilmer "in about the sum of fifty dollars," on a promissory note in favor of Wilmer, and that on the 24th day of April, 1894, Wilmer recovered a judgment against him on said note before Peter Targarona, a justice of the peace of Baltimore City, for $58.38, with interest from date, and $1.50 costs, and that this judgment was the only debt the appellant owed Wilmer at that time and that he has never been indebted to him in any other amount since. The third and fourth paragraphs of the bill are as follows:
"Third. That said judgment expired by the limitation of twelve years on April 24th, 1906, yet notwithstanding the defendant sought to revive the same by scire facias before Justice Randolph R. Warfield with the apparent result that on March 3rd, 1906, a judgment was entered by said Justice Warfield against your complainant in favor of the defendant for $91.40 debt with interest from January 11th, 1894, until paid, and costs of $1.70 paid by the plaintiff, as will more fully appear by reference to a certified copy of the Docket Entries therein, herewith filed and marked as Complainant's *496 Exhibit No. 2 and prayed to be taken as part hereof; and also the defendant sought to revive said judgment by scire facias before Justice David H. Lucchesi with the apparent result that on July 27th, 1906, a judgment was entered by Justice Lucchesi against your complainant in favor of the defendant for $59.88 with interest from April 24th, 1894, and $2.50 costs, as will more fully appear by reference to a certified copy of the Docket Entries therein, herewith filed and marked Complainant's Exhibit No. 3, and prayed to be taken as a part hereof; and that the defendant has recorded the said two judgments with the Clerk of the Superior Court of Baltimore City among the Magistrates Judgments, the one for $91.40 in Liber No. 69, folio 498, and the other for $59.88 in Liber No. 69, folio 502, etc."
"Fourth. That said judgment against your complainant for $59.88 entered on July 27th, 1906, is null and void and of no effect because the same was not obtained in accordance with Article 52, § 54 of the Public General Laws of Maryland (Bagby's Code) in that more than thirty days elapsed between the issuing of the summons and the return thereof; that said judgment against your complainant for $91.40, entered on March 3rd, 1906, was in fact obtained after the original judgment as aforesaid had expired by limitations, and was entered as of a prior date by Justice Warfield at the solicitation and request of the defendant so as to be inside the time limit and therefore revivable; and that the entering up of the said two judgments on scire facias proceedings upon the one original judgment was done fraudulently by the defendant with the intent of securing from your complainant a greater sum of money than was due him, and that the judgment of $91.40 entered against your complainant by Justice Warfield in favor of the defendant herein was done fraudulently and in collusion between the said Justice Warfield and the defendant herein for the purpose of reviving a judgment which *497 had expired by limitations by entering the proceedings for the same on the said Justice's docket at a date prior to the real institution for the fraudulent purpose of bringing them within the time limit of the twelve years in which a judgment may be revived."
The bill then avers that on the 7th of June, 1916, Wilmer caused a writ of fi. fa. to be issued out of the Superior Court of Baltimore City on the judgment for $91.40 with interest from January 11th, 1894, and $1.70 costs, and that in the execution of the said writ the sheriff of Baltimore City had levied upon the appellant's interest in the property known as No. 970 N. Collington avenue, in Baltimore City, and was about to advertise the same for sale.
The evidence shows that in April, 1906, a scire facias was issued to revive the judgment for $58.38; that the writ was made known to the appellant, or, as stated in the docket entries, the defendant was "summoned"; that the case was continued at the request of the defendant, who appeared by counsel, and that a judgment of fiat executio was entered on the 27th day of July, 1906, by David H. Lucchesi, Justice of the Peace, and was recorded in the Superior Court of Baltimore City on January 12th, 1916.
It further appears from the evidence that on the 10th day of February, 1906, Wilmer brought suit against the appellant before Randolph R. Warfield, a Justice of the Peace of Baltimore City, on the following single bill, or a copy thereof, endorsed by Thomas W.F. Jordan:
"$91.40. Baltimore, Md., Jany. 12th, 1894.
Thirty days after date I promise to pay to the order of Thomas W.F. Jordan, ninety-one dollars and forty cents at
Value received with interest from date.
No. Due Feby. 11. C.C. DUNN (Seal)";
that the defendant was returned summoned and that the plaintiff, on the 3rd of March, 1906, recovered a judgment *498 thereon against the appellant for "ninety-one dollars and forty cents ($91.40) debt with interest from 11th day of January, 1894, until paid and one dollar and seventy cents costs, $1.70 costs paid by plaintiff," and that said judgment was recorded in the Superior Court of Baltimore City on the 11th day of January, 1916.
The learned Court below dismissed the bill on the ground that the appellant, the defendant in said judgments, having been summoned, he had ample opportunity to correct any error in said judgments by an appeal, and that having failed to avail himself of that remedy he had no standing in a Court of Equity to obtain the relief sought. We entirely concur in that conclusion so far as the judgment for $58.38, which was revived by the judgment offiat executio, is concerned. In the case of McCormick v.McCormick,
In reference to the judgment dated March 3rd, 1906, for $91.40 with interest from January 11th, 1894, and costs, we think a very different rule applies. Section 6 of Article 52 of the Code limits the jurisdiction of justices of the peace in actions excontractu to cases where the amount recovered does *499
not exceed one hundred dollars, and in the case of Reese v.Hawks,
Decree reversed and case remanded in order that a decree maybe passed in conformity with this opinion, the costs to be paidby Edwin M. Wilmer, appellee. *501