McLaughlin v. Ogle

53 Md. 610 | Md. | 1880

Miller, J.,

delivered the opinion of the Court.

The motion to dismiss this appeal must prevail. It has been settled by repeated decisions that a judgment is subject to the control of the Court until the lapse of the term at which it was rendered, and that from an order striking it out, passed upon a motion made during that term, no appeal lies. Rutherford vs. Pope, 15 Md., 579; Hall vs. Holmes, 30 Md., 558; Townsend vs. Chew, 31 Md., 247.

The record in this case shows that at the January Term, 1879, of the Court of Common Pleas, McLaughlin recovered a judgment against Ogle and Townsend for $180, and on the 22nd of January, during the same term, the defendants made a motion to strike it out. Reasons were assigned in support of this motion verified by the affidavit of one of the defendants, and in June following counter affidavits were filed by. the plaintiff. The Court held the motion under advisement until the following September, and on the 10th of that month overruled it. As soon as this was done the plaintiff issued an attachment on the judgment and had it entered for the use of other parties. After-wards, on the 18th of September, but during the same September Term, Ogle, one of the defendants, filed a petition, accompanied by further affidavits and exhibits, asking the Court to rescind its order of the 10th of September. As soon as this petition was presented the Court rescinded its overruling order, and granted a re-hearing of the motion, and on this re-hearing, on the 8th of November, the motion was granted, the judgment stricken out, and the defendant, Ogle, was ordered to pay the costs of the motion, the costs upon the attachment that had been sued out on the judgment, and to pay into Court the amount of the judgment to abide the result of the case. Erom this order striking out the judgment the plaintiff has appealed.

It is plain the motion was made during the term at which the judgment was rendered, and that upon that motion tbe judgment was stricken out. It is true there was some delay before the final action of the Court, but this does not affect the question as to the right to appeal. That depends upon the time when the motion was made, and not upon the time when it was decided. In some of the cases before referred to there was much longer delay, a delay of several terms, before final action on the motion was had. The fact that the motion was at first overruled on the 10th of September is not important, because shortly afterwards, and at the same term, the Court reconsidered this action, rescinded its overruling order and thus left the case open upon the original motion. We have no doubt of the power of the Court thus to reconsider, and correct, at the same term, what it supposed to he an error in its first order. When it finally acted, it acted on the original motion which was made in due. time, and this brings the case within the rule laid down in the decisions cited.

(Decided 2nd June, 1880.)

Appeal dismissed.