36 Md. 238 | Md. | 1872
delivered the opinion of the Court.
These appeals were taken, one of them from the judgment of condemnation, entered in favor of the appellees, at the January Term, 1870; and the other from the order of the Superior Court, passed on the 6th day of February, 1871, overruling and refusing the motion of the appellant, Thomas Clyde, to strike out and set aside the judgment oí' condemnation.
The appeals were taken on the 7th day of February, 1871.
First. The appeal from the judgment was not taken within the time prescribed by law. Formerly three years were allowed. Code, Art. 5, sec. 7; Mears vs. Adreon, 31 Md., 229. But by the Rules and Regulations respecting appeals, made and prescribed under and by authority of the Constitution, Article 4, section 18, the time was limited to nine months from the date of the judgment. 29 Md., 1, (Rule 2d.)
These rules took effect and were in force from the first day of January, 1870, 29 Md., 8, (Rule 21,) and are applicable to this ease, the judgment of condemnation having been entered after that day. The 20th section, Article 5, of the Code, which enlarges the time for an appeal, in cases where fraud or mistake is alleged, applies only to orders and decrees passed by Courts of Chancery. See 29 Md., 4, (Rule 9.)
Second. In support of the motion of Thomas Clyde to set aside the judgment of condemnation, the following reasons were assigned:
First. Because they were obtained by fraud and surprise practised upon this defendant by the plaintiffs, as set forth in the affidavit herewith filed.
Second. Because the papers filed as the cause of action, shew no indebtedness by this defendant to the plaintiffs.
Third. Because the pretended agreement, filed as the cause of action, is not stamped.
Fourth. Because it is nowhere alleged in the proceedings that the Potomac Steamboat Company is a corporation, and a private partnership cannot maintain a suit, except in the ■names of the individual partners.
It is objected by the appellees that this motion was made too late; but there was no unreasonable delay or laches on the part of Thomas Clyde in filing the motion. It appears that.he sought relief as soon as he had any knowledge of the proceedings. He was an absentee, and had no actual notice of the attachment until his property was advertised for sale by the sheriff under the writ oí fieri facias.
In disposing of the motion, we will consider the several reasons assigned, inverting their order.
By the Act of 1868, ch. 471, section 215, it is provided that “ it shall be sufficient in any suit, by or against a joint stock company, or association to describe it, by the name or title by which it is commonly known, or under which its business is transacted.” This provision is a sufficient answer to the fourth reason or cause assigned in support of the motion.
The objection for the want of a stamp to the paper signed by Van Riswick, Agent, has not been urged in the argument ■ in this Court, and could not be successfully relied on in sup
The second cause assigned, based upon the alleged defects in the attachment papers, as not shewing any indebtedness from the defendant, Clyde, to the plaintiffs, we think is not supported.
The last count in the short note, when taken in connexion with “the account thereto annexed” to which it refers, is a sufficient statement of a cause of action. And the account filed with the affidavit, together with the voucher annexed thereto, being the letter of Mattingly, agent and attorney, addressed to Van Riswick as agent of Clyde, with the acceptance of the proposition therein contained by Van Riswick, agent, are sufficient to shew prima faoie a debt due from the defendant, Clyde, to the plaintiffs to support the attachment.
In the affidavit of Clyde accompanying the motion, there are several things alleged, which, if true, are sufficient to make out the charge of bad faith, on the part of the appellees, in instituting the proceedings against his property.
Nearly three years elapsed after the supposed debt had accrued before the suit was instituted, and he avers that the plaintiffs never presented their account to him, nor demanded payment from him; although he visited the city of Washington, the place where they reside, and where the debt is alleged to have arisen, frequently during that period, and was known to the plaintiffs to be there, and to be fully able to pay the debt if it really existed. He further avers that it was well known to them that he did not owe the debt or any part of it, but that the rent charged, if any was due, was due and payable by the “ Washington and Alexandria Steamboat Company,” a corporation of which he was only a stockholder, and that he was in no manner personally bound for the same. He further avers that Van Riswick was managing agent for the company, by which the wharf was rented, and was not his agent, and was not authorized to bind him by signing the paper exhibited as a voucher or contract.
In the face of these averments, verified by oath, we think the Superior Court ought not peremptorily to have overruled the motion; but that an opportunity ought to have been afforded to the parties to sustain or to disprove these averments; and if they had been supported by proof, the motion ought to prevail. In order that the parties may have an opportunity to produce testimony, and that the motion may be heard and disposed of on its merits, we reverse the order of the Superior Court and order a new trial upon the motion.
Order reversed and new trial directed.
