87 Md. 671 | Md. | 1898
delivered the opinion of the Court.
The appellee filed a bill in equity against the appellants alleging that contemporaneous with the execution and delivery by them to him of a deed, which is absolute in terms, he entered into an agreement with them by which he agreed that upon payment by Walter H. Harrison to him of a promissory note for the sum of twenty-five hundred dollars, and upon compliance with certain conditions named in the agreement, he would reconvey the property to either of the defendants or such person as they might designate. The note is alleged to have been long since overdue and unpaid, and the plaintiff claimed a lien in the nature of a mortgage. A subpoena was issued returnable on the second Monday of January, .1897, which the sheriff returned “summoned ambo.” On the third day of March, 1897, a decree pro confesso was passed, in which it was stated that the defendants had been returned, summoned and had failed to appear. Testimony was taken on the 6th day of April, 1897, and, having been returned, the case was referred to
It is contended on behalf of the appellants that the allegations in the bill did not entitle the plaintiff to relief and the Court was without authority to grant the relief given, by reason of the defects in the bill. We have already stated as much of the bill as is necessary to show that the object was to have a lien declared for the amount alleged to be due, and in default of the payment thereof to have the property sold. We cannot understand how, as between the original parties, there can be any question about the jurisdiction of a Court of Equity to grant the relief prayed for. Inasmuch as the deed, which was an absolute conveyance in terms, was intended only as a security in the nature of a mortgage, according to the allegations of the bill, and
The principal question for our determination is whether the decree pro confesso and the proceedings thereunder were valid. Both of the defendants were returned summoned, but the evidence shows that the deputy sheriff went to the office of Mr. Harrison with the summons, and although there is some discrepancy between the deputy and Mr. Harrison as to what there occurred, the latter admits that the deputy told him he had a summons for him and Mrs, Harrison, and he referred him to Governor Whyte, who was his attorney in this case. The deputy then called on Governor Whyte, who wrote on the back of the subpcena “ Enter my appearance for defts., Wm. Pinkney Whyte.” Upon the faith of that the deputy made the return above mentioned. The Clerk of the Court, probably not observing the endorsement of counsel, did not enter his appearance, but entered the return of the sheriff on the docket. The object of the service of process is of course to give the parties formal notice of the proceedings, and whilst it must ordinarily be served in one of the methods prescribed by law, yet that can unquestionably be waived by the parties. A voluntary appearance of a party to a suit is a waiver of formal notice. Belt v. Blackburn, 28 Md. 242, and the most usual way of waiving service is by the appearance of an attorney. The presumption is that an at
But it is urged that if this be so then the decree pro confesso was invalid, because it is based on the failure of the defendants to appear, reciting that “the defendants having been duly summoned to appear to the bill of complaint and having failed to appear thereto according to the
Orders affirmed, costs to be paid by the appellants.