McCormick v. McCormickMcCormick v. McCormick
delivered the opinion of the Court.
Thе parties to this suit are alleged in the bill to be tenants in common in the leasehold property located on the northwest corner of Harford avenue and Chase street in the city of Baltimore. The appellant, Thomаs McCormick, on the 4th day of April, 1906, filed a bill in the Circuit Court .No. 2, of Baltimore City, for the sale of the property under the provisions of sec. i2p, Art. 16, Code ipop John McCormick, Mary Ann McCormick, Samuel McCormick, and Elizabeth Kavanaugh, the other „alleged co-tеnants, were made parties defendants to the cause. . The bill prayed for the sale of the property, and for the distribution of the proceeds of sale among the owners according to their respective' rights and interests. Process was issued against the defendants as co-owners, who were returned summoned by the Sheriff of Baltimore City.
On the 9th day of July, 1888, in the Baltimore City Court, a judgment by confession had been entered against the complainant, Thomas McCormick, in favor of Joseph M. Brown “for the sum of $815, with interest from date and costs of suit.” In this suit James McColgan, Esq., appeared for McCormick, and confessed the judgment in pursuance of a power of attorney from the defendant which rеad as follows: “I hereby authorize James McColgan, or any other, attorney in Baltimore City to enter his appearance for me, and confess judgment on my behalf in favor of Joseph M. Brown for the sum of eight hundred and fifteen dollars, $815.” On the 6th of July, 1900, three days before the statutory'period of limitations would have accrued, a scirie facias was issued to revive the judgment, The writ was made known to McCormick, who failed to appear or plead, but permitted a judgment of fiat executio to be entered, which became final upon the expi *327 ratiоn of the term. No mention was made of this judgment in the bill of complaint.
On the 12th of April, 1906, eight days after the filing of the bill, in consideration of the sum of $1,100, Brown entered the judgment to the usé of Mary A. McCormick, one of the respondents, who caused a fi.fa. tо be issued thereon. Whereupon the complainant, on the 7th day of May, 1906, filed a petition in the cause in which he asked that Mary A. McCórmick and the Sheriff of Baltimore City might be restrained from selling, or in any manner disposing of, or interfering with the property mentioned in the proceedings, pending the further determination of the cause. The grounds upon which this relief was asked are stated in the 4th, 5 th, 6th, 7th, xoth, and nth paragraphs of the petition as follows: “4th. That at the time of signing said рaper writing (being the power of attorney mentioned above) Aloysius C. Smith, the agent of said Joseph M. Brown, called at your petitioner’s house, and promised and agreed with the petitioner that if he, your petitioner, would sign said paper, that the sum therein mentioned, $815, should not bear interest, and that the judgment to be entered in pursuance of said paper would be released upon the payment of said sum of $815, which promise and agreement was madе to your petitioner in the presence of his. wife, Catharine McCormick, as will appear by the affidavit herewith filed as part hereof, marked Exhibit No. 2, that it was this promise and agreement that induced your petitioner to sign said paper. 5th. That in pursuance of said promise and agreement made your petitioner as aforesaid, the attorneys appearing in the case in which a judgment was entered in favor of said Brown against your petitioner, which attorneys were in the employ of said Brown, struck out the word interest wherever the same appeared in the printed narr. filed in said case, wherein said judgment was entered against your petitioner, as will appear by refеrence to a certified copy thereof which is herewith filed as part hereof marked Exhibit 3. 6th. That instead of a judgment being entered as promised and agreed upon and the narr. filed therein, a judgment was entered *328 against youf petitioner in favor of said Brown for the sum of $815 with interest from date, and your petitioner, relying entirely on the statements máde him by said Smith and the honor and integrity of said Brown, gave the matter no further attention, Until about the latter part of January of the presént year, which was shortly after'the death of his mother whereby he became entitled to his interest in the-property mentioned in these proceedings,-when he called on said Brown and tendered himself ready to pay said Brown the amount due thereon and have the judgment-entered satisfied, and then, to his great surprise, discovered that said judgment had been entered so as to bear interest from its date, and the said Brown refused to accept from your petitioner the amount actually due and release him; or have said judgment entered satisfied, but demanded of your petitioner, before entering said judgment satisfied, the sum of $1,200. ioth. That notwithstanding the fact that the sum paid-for said judgment .is $i,200 and that your petitioner is entitled to a сredit of $>ioo thereon with interest from the 25th day'of January, 1892, the defendant has had issued from the Baltimore City Court, wherein said judgment was entered claiming -therein that your petitioner-owes her on. said judgment the sum $1,715.20, which sum of $1,715.20 is more than a thóusánd dollars in excess of what your petitioner does justly -owe thereon; that George W. Padgett, the Sheriff of Baltimore City, has -notified your petitioner, by reason of the writ issued .thereon by. order of the said Mary-Ann McCormick, that he will sell at the court house, Baltimore City; your petitioner’s interest in said property in these proceedings mentioned, on the nth day of.May, 1906, as will appear by a copy of the advertisement thereof filed herewith as part hereof marked-Exhibit Nо.' 5. nth. That said defendants to these proceedings had full knowledge of said agreement between your'petitioner .and the .said Brown, your petitioner therefore avers and charges that the said Mary Ann McCormick is not an -innocent purchaser thereof without knowledge, but on the contrary is seeking to waste and prevent yóur petitioner from receiving for his interest in said property what he would other *329 wise receive if the property were sold in these proceedings.” An injunction was issued as prayed.
The defendants answered the petition under oath, and directly and specifically denied all the averments contained therein impeaching the validity of the judgment. Upon the filing of thе answer, the defendants moved to dissolve the injunction. This motion was heard upon petition and answer, and resulted in the order of the 13th of June, 1906, dissolving the injunction. From this order the petitioner appealed.
It is a well settled rule of еquity practice that where a motion to dissolve an injunction is heard upon bill and answer, the responsive allegations of the answer must be taken as true, and if the equity of the bill is sworn away by the answer the injunction must be dissolved.
Webster
v.
Hardesty,
As we havе before stated, every allegation upon which the plaintiff relied to impeach the judgment- was flatly denied in the answer, and in the absence of evidence produced at the hearing to support the averments of thе petition,, the Court was bound to take these denials as true.
But upon another and distinct ground it is perfectly obvious that a Court of equity had no jurisdiction, under the appellant’s petition, to inquire into the validity of the judgment. The conditions which must exist to authorize a Court of chancery to restrain the execution of a. judgment have been stated in many cases in this Court. In Dilley et al. v. Bernard, 8 G. & J. 171, where a bill was filed to restrain the execution of a judgment, the Court said: ‘‘In 6 G. & J. 312, this Court, in adverting to the doctrine of Courts of equity upon the subject of administering relief against judgments at law, after stating the general principle, say: ‘That every person is bound to take care of and protect his own rights and interests, and to vindicate them in due season and in the proper place.’ And then laid ‘down the following well established general rulé:' “that a Court of equity will not relieve against a recovery in a trial at law, unless the justice- *330 of the verdict can be impeached by faсts, or on grounds of which the party seeking the aid of chancery could not have availed himself at law, or was prevented from doing it by fraud or accident, or the act of the opposite party, unmixed with any negligence оr fault on his part.”
The rule here laid down is. wise, salutary and politic, and has received the sanction, not only of the English Courts of equity, but of the highest judicial tribunal in this Union.
Marine Insurance Company of Alexandria
v. Hodgson,
The petition of the appellant does not state a case within this rule. Assuming that the judgment had been originally obtained by the fraud of Brown’s agent, Smith, which averment is denied by the answer, it appears by Exhibit 4 filed with the petition that the writ of
scirie facias
was made known to him, and that hе was thus made acquainted with the terms of the judgment , and ifthe j udgment had been improperly entered, as he no w contends, he had ample opportunity, and it was. his duty, to have appeared and made defense. Having neglectеd to avail himself of any rights, or defenses he may have had to the judgment, he cannot ask a Court of equity to relieve him against the consequences of his own negligence. “It is perfectly well settled, that if á party has a good defense at law, and neglects to avail himself of it there, in the proper way, and at the proper time, or if he suffers judgment to go against him
*331
by neglect, he can have no relief in a Court of equity.”
Gorsuch
v.
Thomas,
In
Thurston
v.
Minke,
Order affirmed, the appellant to pay the costs above and below.