48 Md. 404 | Md. | 1878
delivered the opinion of the Court.
The record in- these appeals shows that McCormick brought an action of assumpsit against Hogan in the Court of Common Pleas, on the 8th of December, 1875. The defendant was summoned, and on the return day of the writ appeared in propria persona, and was laid under rule plea. On the 28th of April, 1876, a judgment by default for want of a plea was entered against him, and on the same day was extended, on proof submitted to the Court, for the sum of $162.60 with interest from date, and costs. On the 9th of May following, the plaintiff sued out an attachment by way of execution on this final judgment, which, on the next day was laid in the hands' of the Northern Central Railway Company, as garnishee. On the 22nd of August following, the defendant by his attorney moved to £ £ quash this attachment and to strike out the judgment rendered therein." The record does not show that at that time any judgment had been rendered in the attachment case, and we must therefore treat this motion simply as a motion to quash the writ of attachment. But if, as stated in the appellant’s brief, a judgment of condemnation nisi had been entered on the 14th of May, 1876, the motion to strike out must by its terms apply to that judgment only. This motion the Court overruled, and on the 12th of March, 1877, the garnishee filed in the attachment case a confession of funds of the defendant in its hands to the amount of $17,1.15, and. this confession the plaintiff accepted and moved .that a condemnation he entered for that amount, but no such judgment appears by
No reasons in support of either motion were filed in the Court below, and the only ground upon which, in argument here, the action of that Court is sought to be sustained, is that the declaration fails to claim any specific sum for damages. It contains counts for goods bargained and sold, for work done and materials provided, and the common money counts, and concludes thus: “and the plaintiff claims $-” This is unquestionably a defect that would have been fatal had it been availed of at the proper time. But we are very clearly of opinion the defendant has lost the right to take advantage of it by his own laches and neglect. In deciding upon an application to strike out a judgment after the term is past, for fraud, irregularity, deceit or surprise, the Court acts in the exercise of its quasi equitable powers, and in every such case requires the party making the application to act in good faith, and with ordinary diligence. Relief will not he granted if he has knowingly acquiesced in the judgment complained of, or has been guilty of laches, and unreasonable delay in seeking his remedy. This principle pervades all the cases, and has beeD reiterated and reaffirmed in each of them in the plainest and strongest terms. Kemp vs. Code, 18 Md., 130; Montgomery vs. Murphy, 19 Md., 576; Tiernan vs. Hammond, 41 Md., 548 ; Sarlouis vs. Firemen’s Ins. Co., 45 Md., 241; and Craig vs. Wroth, 47 Md., 281. Here the motion was not made until more than a year after the judgment, and not until after the lapse of at least three terms of the Court, in which it was rendered. This delay is not only entirely unexplained,
It follows there was error in setting aside this judgment, and in quashing the attachment issued thereon. Both orders are reversed and the causes remanded.
Orders reversed, and causes remanded.