60 A.2d 665 | Md. | 1948
The question raised on this appeal is whether the Superior Court of Baltimore City erred in striking out a judgment which had been entered by default in favor of Lawrence North, plaintiff, against Town Real Estate Corporation, defendant.
Plaintiff alleged in his declaration filed September 30, 1946, that he had been granted a concession by Bay Shore Amusement Park, Inc., to operate a public launch at the end of the pier at Bay Shore Park on the Chesapeake Bay; that he had made payment in accordance with the contract and also had spent about $500 in building a landing platform and runway at the end of the pier; but that Bay Shore Amusement Park, Inc., was sold to defendant; and defendant revoked the contract. Plaintiff claimed $10,000 damages for breach of contract. The writ of summons was made returnable to the second Monday in October, the October return day, but defendant was returned non est. On October 14 the writ was stamped: "Renewed to November Return Day." The clerk of the court, however, neglected to imprint this stamp on the copy of the summons and the copy of the declaration. On October 17 the copy of the writ and the copy of the declaration, indicating that the writ was returnable to *216 the October return day, were served on Oswald L. Bonifay, president and resident agent of defendant.
On December 12, 1946, judgment by default was entered against the corporation, no plea having been filed by the December return day. On February 19, 1947, the judgment for plaintiff was extended for the sum of $4,340. A petition for supplementary proceedings was filed on May 29, and on June 9 the attorney for defendant, appearing specially, moved to quash the writ of summons and vacate the judgment. From the Court's order quashing the writ and vacating the judgment plaintiff appealed here.
The Maryland Corporation Law expressly provides that the officer serving process in any action against a corporation of this State or a foreign corporation shall leave a copy thereof with the person upon whom it is served. Code, 1939, Art. 23, sec. 111 (g). In addition, the local law of Baltimore City provides that a copy of the declaration must be delivered to the defendant before the return day of the writ, and the defendant must be summoned before the return day. Baltimore City Charter, 1938 Ed., sec. 400. If the original writ is not served on the defendant and is returned not executed, it may be renewed returnable to the next return day thereafter. Baltimore City Charter, 1938 Ed., sec. 397. When a declaration in any action is filed in one of the courts of Baltimore City, and a copy is delivered to the defendant before the return day of the writ, and the defendant is summoned before the return day, he shall plead before the next succeeding return day, or judgment by default for want of a plea will be entered by the court or the clerk thereof upon motion of the plaintiff, unless the Court for good reasons grants the defendant further time in which to plead. Baltimore City Charter, 1938 Ed., sec. 400.
It is well established that the common law courts in Maryland have inherent power as courts of record to strike out judgments improperly rendered. Where the motion to strike out the judgment is made during the same term at which the judgment is rendered (or within *217
thirty days thereafter under the practice in Baltimore City), the application is within the sound discretion of the court; and when the motion is granted and the judgment stricken out, no appeal will lie at the instance of the plaintiff. After the term at which a judgment is recovered (or after the lapse of thirty days in cases under the local law of Baltimore City), the judgment is said to be enrolled, and thereafter it cannot be stricken out except upon clear and convincing proof that it was obtained by fraud, surprise, mistake or irregularity, and unless it appears that the party making the application had acted in good faith and with ordinary diligence. Harvey v. Slacum,
It is a fundamental rule that a judgment obtained in a suit of which the defendant received no notice is a nullity, and should be stricken out upon proof that no summons had been served upon him and he had no opportunity to be heard. Simon v. Southern Ry.Co.,
It was argued by appellant that, while it is true that a corporation, under the Maryland statute, is entitled to have a copy of process left with its agent upon whom service is made, yet if the summons is read or explained to the agent, the corporation is put on notice. But we cannot assume from the return of the summons that the deputy sheriff either read it or explained it to Bonifay. There is no evidence that the summons was read or explained to him. The sheriff's return is primafacie evidence of its own correctness. But there is no statute in this State requiring the reading of a summons to the defendant, though it is a proper service. Adkins v. SelbyvilleMfg. Co.,
Even if the summons had been read or explained to Bonifay, it did not comply with the statute. It is generally held that where a summons substantially complies with the statute, a palpable mistake in the return day, or any other clerical error which does not mislead the defendant to his prejudice is merely an irregularity which may be amended. Condon v. Barr,
On the other hand, it has been held that a summons commanding the defendant to appear at a past date is void, and is therefore sufficient ground for dismissing the suit. Hall v. OceanAccident Guarantee Corporation,
When the Legislature has prescribed two requirements for validity of a summons, the Court cannot usurp the legislative prerogative by declaring in any particular case that one of the requirements will be sufficient. Both personal service and the leaving of a copy of the summons are jurisdictional requirements. Without the leaving of a copy of the summons, the service is incomplete and ineffectual. Wagner v. Shank,
In the instant case it is clear that a mistake was made through carelessness in the office of the clerk of the Superior Court. However, the test to be applied in a case like this is whether there has been an error which denied the defendant a substantial right. In the absence of a general appearance by the defendant, such an error as that shown here makes the summons void, and therefore the judgment is a nullity. We add that nothing we have said in this opinion should be considered as an intimation that we approve of the practice of the clerk of reissuing a returned writ with the imprint of a renewal stamp, instead of issuing an entirely new writ. This short cut may be the means of saving some trouble for the clerk, but, as illustrated by this case, the far more important potentiality is the trouble that may be caused to litigants. The likelihood of making a mistake would be lessened if the clerk would issue a new writ and make a copy of it at the same time.
For the reasons stated we hold that the Court below was correct in quashing the writ and vacating the judgment.
Order affirmed and case remanded, with costs. *221