Montgomery v. Murphy

19 Md. 576 | Md. | 1863

Goldsbobougii, J.,

delivered the opinion of this Court:

The appeal in this case was taken from the action of the Superior Court of Baltimore city, overruling the motion of the appellant to strike out a judgment entered against him in that Court, on the 15th day of September 1855.

The motion to strike out the judgment was filed on the 9th day of January 1857, and the appellant assigned as the reasons for the motion, that the judgment was entered by mislalce, and was not the proper judgment to be entered.

"We find from the record that the appellee instituted suit against the appellant to recover $3,000 for work and labor, and for goods sold and delivered; and that at May term ,1855, the appellant appeared by Messrs. McLean and Williams as his attorneys, pleaded the general issue and the statute of limitations, and also demanded a bill of particulars.

The cause was continued until the September term following; and though service of the rule, replication and notice of demand for a bill of particulars was admitted by the attorney for the appellee, no replication was filed nor bill of particulars furnished, but at this term a judgment by confession for the plaintiff was entered and extended.

It appears from the affidavit of F. A. Prevost, that he was a deputy clerk in the clerk’s office of the Superior Court, in the year 1855, at the same time that an entry of judgment was made by Levin Handy, as Court clerk in this case; that it was so made without stating on the docket whether it was for the plaintiff or the defendant; that subsequently, after the adjournment of the Court, and in the clerk’s office, when deponent was about transcribing said judgment in said office on the record docket, he required an explanation of said entry, when he was instructed by Handy to make the entries which are now upon said docket; that the only entry upon said docket, until it came into the clerk’s office, was the said word “judgment,” and that the other words were not written there until they were so written by this deponent in the office, and not in Court, and were so written by the direction of said Handy, as aforesaid. Therefore the only entry made by the Court clerk, in legal contemplation, under the eye of the Court, and by its authority, was the word “judgment.”

A judgment by confession is an affirmative act, consented to by the defendant in person, or by his attorneys, with the leave of the Court. In the affidavits of the defendant and of his attorneys, they utterly deny any such confession; and if any judgment was ordered to be entered, it was more consonant with the state of the pleadings in the cause that it should have been a judgment by default for want of replication and the failure to furnish a bill of particulars.

Though this Court has said, in the case of Weighorst vs. The State, 7 Md. Rep., 450, “it has always been the habit of clerks to take minutes and docket entries of the Court’s proceedings, and subsequently to enter them at length in technical language, according to established forms,” we cannot sanction the extension of this habit to a case in which the clerk has made the single entry of “judgment,” and then, out of Court, fixing the liability of plaintiff or defendant from mere recollection as to how the judgment should-be entered at length. If the “judgment” had indicated, when placed on the minutes of the Court, for or against whom it should have been entered, the recording clerk might, by reference to the character of the action, have followed the recognized forms in making the record complete.

It may be said, that the record shows the pleas and demand for bill of particulars were withdrawn. We can only regard such entry as the act of the clerk in making up the record. The character of the pleas, and the settled purpose of the defendant to contest the plaintiff’s claim, as shown by the affidavits of the defendant and his attorneys, forbids the idea that the judgment was confessed; and there is no evidence of any order indicating the sum on payment of which the judgment should be released. Is this, therefore, a case within the provisions of the Act of 1787, ck. 9?

This Court has said, in the case of Kemp & Buckey vs. Cook & Ridgley, 18 Md. Rep., 139, “in deciding upon the application to strike out a judgment after the term is past, for any of the reasons mentioned in the Act of 1787, the Court acts in the exercise of its quasi equitable powers, and will therefore properly consider all the facts and circumstances of the case, and require that the party making the application shall appear to have acted in good faith, and with ordinary diligence.” “Relief will not be granted when he has knowingly acquiesced in the judgment complained of, or has been guilty of Ihehes and unreasonable delay in seeking his remedy.”

In this view of our duty, we have examined the facts of the entry of the judgment, and will now consider the question, whether the appellant has been guilty of laches in making his motion to strike out the judgment.

From the period of the entry of judgment to the time when the motion to strike it out was made, four terms of the Court had intervened, and the counsel of the appellee urged upon our consideration that it was the practice of the clerk of the Superior Court to furnish the attorneys practising therein, with dockets of the respective terms, each docket containing the trial calender; thus raising the presumption that the appellant’s attorneys had an opportunity to know what disposition had been made of this and their other cases.

(Decided May 5th, 1863.)

But there is no evidence whatever in the record to show that the dockets time distributed, were received by the appellant's attorneys, and this presumption of notice is fully rebutted by the affidavits of those gentlemen, in which they severally aver that they only heard of the judgment a few days before the motion to strike it out, and to their great surprise; and the affidavit of the appellant is equally positive in this particular.

The judgment records of the State are presumed to have been made up after the most careful deliberation, and to permit them to be altered or amended without the most solemn forms of proceeding, would be contrary to law and good policy.

The Act of 1787, authorizes the correction of errors similar to those in this case, and we fool well assured that we are promoting the sanctity of judicial records by granting relief under our quasi equitable powers and the provisions of this Act, when such a manifest error is presented for our consideration.

Under the circumstances, the order of the Superior Court overruling the motion to strike out, must be reversed, the judgment stricken out, and the cause remanded, so that the case may be brought up by regular continuances, and prosecuted according to the usual course.

Order reversed o/nd procedendo awarded.