30 Md. 558 | Md. | 1869
delivered the Opinion of the Court.
These two cases are contained in the same record, were argued together, and, as the facts and proceedings are the same in both, they will be considered together in this opinion.
The first question to be considered, arises upon the motion to dismiss the appeals, upon the ground that an appeal does not lie from an order overruling a motion to strike out a judgment, and the cases of Hawkins vs. Jackson, 6 H. & J., 151; Washington vs. Hodgskin, 12 G. & J., 355; Thomas vs. Mohler & Graff, 25 Md., 44, and the Cumberland Coal Co. vs. McKaig, et al., 27 Md., 258, were cited in support of the motion.
In the0 case of Hawkins vs. Jackson, the motion to strike out the judgment was made during the same term at which the judgment was entered, and was based not upon the ground of fraud, deceit or surprise, but upon the allegation that the defendant had employed counsel to defend the suit, who had failed to file the pleas, and because he had a good defence upon the merits. The motion in that case was- addressed to the discretion of the Court, it was overruled, the defendant excepted and took an appeal, and although the Court of Appeals said that an appeal did not lie under such circumstances, yet the Court did actually entertain the appeal, and reversed the judgment for the reason that the declaration set out no cause of action, but showed that payment of the bill of exchange sued on, was not demanded in time, and that the appellant, who was sued as endorser, was discharged from his liability. The other cases cited by the counsel of the appellee do not apply to the cases now under consideration. It is true that an appeal will not lie from an order of the Court striking out a judgment, where the motion is made
The pleadings show that the issues joined were submitted to the Court for trial, and the record contains no statement of the evidence upon which the judgments of the Court below were founded, and no exceptions were reserved, and therefore there is nothing for this Court to review, so far as the fiats are concerned, and the judgments are conclusive upon the parties
A judgment will not be set aside after the expiration of the term at which it was rendered, except upon clear proof of fraud, surprise, or irregularity. The motions and reasons filed in these cases, do not allege that the fiats were obtained by fraud or surprise, nor is there any proof in the record that they were irregularly entered. The only affidavit filed is that of William W. Hall, who is a defendant in each of the cases, and in it is a statement that the fiats “were rendered by surprise; that neither he nor either of the other defendants, nor either of their attorneys, confessed the fiats, but that they were rendered in the absence of the defendants’ attorneys, and when the said defendants had a good defence thereto, and had plead the same to the best of their knowledge and belief.”
Judgments affirmed.
