50 A. 422 | Md. | 1901
This appeal presents a very narrow question of practice, and we will dispose of it briefly.
A judgment was rendered against the defendant, Augustus M. Geesey, 16th November, in 1883, in the Circuit Court for Frederick County in favor of William R. Stouch and others co-partners, for the sum of three hundred and ten dollars. On the 2nd May, 1895, within twelve years from the rendition of the judgment, a writ of scire facias was issued and returned *76 nihil, and on the 15th July, of the same year, scire facias
was again issued and a similar return was made by the sheriff. Upon these two nihils judgment of fiat executio was entered on the 19th August, 1895. On the 8th of December, 1900, the defendant filed a motion to strike out the judgment of fiat;
(1) Because it was obtained without notice; (2) because the Court was without jurisdiction; (3) because the judgment was a surprise to him; (4) because the judgment was paid, and (5) because the defendant is not indebted to plaintiff. The plaintiff made affidavit before a Justice of the Peace that "the matters and things set out in the aforegoing motion are true to the best of his knowledge, information and belief." The motion was heard by the Court on the 7th February, 1901, and the defendant having failed so far as the record shows, to produce any testimony whatever, to sustain the facts on which his motion was based, it was, in our opinion, properly overruled by the learned Judge below. Motions to strike out judgments should be supported by clear and convincing proof in addition to the ex parte
affidavit of the defendant. As was said by this Court in the case of Johnson v. Foran,
The judgment appealed from will therefore be affirmed, without prejudice however to the right of the defendant to file his motion in the Court below to strike out judgment of fiatexecutio, and support it by such material and proper evidence as he can produce.
Judgment affirmed without prejudice.
(Decided November 22d 1901.) *77