Sprigg v. State

54 Md. 469 | Md. | 1880

Irving, J.,

delivered the opinion of the Court.

The record in this case shows that Thomas C. Boone was appointed collector of taxes for the third district of Anne Arundel County for the year 1873, and that the appellant, together with R. L. Moss and Charles Boone of S., became his securities on his collector’s bond. On the 27th day of September, 1875, suit was brought on this bond against the collector and the surviving securities, and a separate suit was brought against the administrators of Charles Boone of S., who had died. The suit was brought to the October Term of the Circuit Court for Anne Arundel County, the session of which began on the third Monday of October, 1875. A notice of the amount due the State from the collector, and of the intention of the counsel of the State to move for judgment at the first Term, to wit, at the October Term of the Court, signed by the counsel for the State, was sent out with the writ, and was served on the several parties to the suit ten days prior to the sitting of the Court, as is required by the seventieth section of Article 81 of the Code as enacted by the Act of 1874, cb. 483. At the sitting of the Court, Thomas C. Boone, the principal in the bond, and R. S. Moss, one of the securities, appeared by counsel; but no attorney appeared for James Sprigg, the appellant. No defence was interposed, and the Court, on motion, at the first Term thereof, on the 10th day of November, 1875, rendered judgment against the collector and his securities for the penalty of the bond, to be released on the payment of the sum of twenty-four hundred and one dollars and seventy-three cents, with interest from the date of the judgment (and for costs) being the amount, certified by the Comptroller, under the seventieth section of Article 81 of the Code, as being due. A fieri facias issued on this judgment to the July Term, 1878, which, being outstanding, the appellant, on the 20th of January, 1879, as of the October Term of the Court, 1878, moved to strike out the judgment, and to bring forward the case by regular continuances, that it might be heard regularly. The reasons in the motion are :

1st. Because the judgment was entered against him improvidently and irregularly, without any appearance to the suit by the appellant either personally or by attorney.

2nd. Because he has a valid defence, in law, in this, that the bond upon which the suit was brought was never properly executed, approved, or filed as required by law.

3rd. Because he was assured by his principal that there was no necessity for his employing an attorney to appear for him, as he would'soon pay all he owed the State; and that, being an illiterate man, the judgment was rendered against him practically by surprise.

4th. Because of other irregularities.

It is well settled, in this State, that a judgment will not he set aside after the expiration of the Term at which it was entered, except upon clear proof of fraud, surprise, •or irregularity. No fraud is alleged, and the third reason sets up no such surprise as we can regard. It is his misfortune to he illiterate, and to have been too confiding in his principal; but it forms no sufficient reason for interfering with the judgment. The only grounds really relied on at the hearing were that the appellant’s personal appearance was not entered before judgment was entered; and that the appellant had a good defence to the action by reason of the non-approval of the collector’s bond by the Governor, and its not being filed in the Comptroller’s office as required by law.

The provision made by sec. 85, of Art. 75 of the Code, is that where “the defendant returned summoned, shall fail to appear, the Court shall on the second day of the Term to which the summons is returnable, enter the appearance of any defendant so summoned and failing to •appear, and the action shall proceed in the same manner •as if the party had appeared in person.” It is not necessary for us to determine whether, in this case, it sufficiently appears that the personal appearance of the defendant was not entered; for we do not think that the provision of the Code just quoted applies to cases of summary proceedings against a collector and his sureties. Sec. 70 ■of Art. 81 of the Code, provides that, “when the Comptroller shall order suit upon a collector’s bond, he shall transmit to the State’s Attorney or some other attorney by him selected, a statement of the account of such collector ; and upon the account so transmitted, signed and certified by the Comptroller, and on motion being made on behalf of the State, judgment shall be entered at the first Term of the Court in which suit may have been brought in the name of the State, against such collector and his sureties, and ’ execution shall issue thereon as in other cases; provided ten days previous notice in writing be delivered to such collector and his sureties, or left at their place of abode, signed by the said attorney; and it shall be the duty of the sheriff to serve such notice, and proof of such service shall he made to the satisfaction of the Court, before such judgment shall be entered.”

In cases under this section it is the proof of the service ■of the notice to the satisfaction of the Court, which warrants the Court in proceeding to summary judgment, at the first Term, unless the collector or his sureties, shall ask a trial by reason of anything pleaded in defence under sec. 11 •of Art. 81. The entry of judgment in such case is an adjudication, that the service was proven to the satisfaction of the Court, and that no defence was made or trial ■asked for. It is a summary proceeding requiring the utmost diligence on the part of the defendants to appear and proffer defence; for no provision is made for delay beyond the Term, to enable them to plead. The Court is authorized to proceed at once on proof of service. This only, in such cases is made the basis of jurisdiction to enter judgment. The motion for judgment comes immediately on the return and service being announced, as in an attachment case ; and the Court being satisfied, that notice has been served, judgment goes as a matter of course, unless the defendants appear according to the exigency of the •summons and proffer defence. It is an exception to the provisions of Art. 15, sec. 85. The two provisions were enacted by the adoption of the Code simultaneously, and ■are to be construed together, and in the light of the object intended to be secured by each. Sec. 85 of Art. 15, was intended for cases which were required to proceed by regular stages of pleading to judgment. By it a defendant duly summoned, who neglected to voluntarily appear in person or by attorney, was to be entered as having ■appeared that he might be affected with notice of declaration filed and the rule to plead, and thus be compelled to defend or be put in default for want of a plea. To coerce the speedy payment of taxes, for the support of the Government, by those charged with the duty of collecting them, the law provided the summary method of Art. 81, and enabled judgment to be obtained immediately, without the usual delay incident to pleading, upon its appearing, that the special proceedings, provided for, had been strictly pursued. - In this case all the provisions of sec. 70, Art. 81 of the Code, seem to have been fully complied with, and we are of opinion that there was no irregularity in the rendition of the judgment by reason of the non entry of the personal appearance of the defendant, if such entry was omitted.

(Decided 2nd July, 1880.)

It is not necessary for us to decide whether the bond of the collector was void or voidable for the want of the Governor’s approval, or by reason of the neglect to file the same with the Comptroller, which omissions are relied on for defence to the action if judgment'should be stricken out, (and to enable the appellant to plead which omissions, it is asked that the judgment shall be struck out;) because if the bond was not a good cause of action for those technical reasons, the appellant knew or ought to have known it, and ought to have made his defence at a proper time. He does not bring himself within any of the conditions of “fraud, surprise or irregularity,” where the Court will interfere. Hall, et al. vs. Holmes, Adm’r, 30 Md., 558. Relief will not be granted where the party has been guilty of laches or unreasonable delay. Tiernan vs. Hammond, 41 Md., 548. In this case if there was a defence he has not exercised ordinary diligence in setting it up. We see no ground for interfering with the judgment, and the action of the Court in overruling the motion to strike it out will be affirmed.

Judgment affirmed with costs.