Weitz v. MacKenzieWeitz v. MacKenzie
- Reporters:
- ,
- Before:
- Singley
delivered the opinion of the Court.
This is an appeal from an order of the Circuit Court for Prince George’s County setting aside a confessed judgment in the amount of $60,000.00 with interest, costs and an attorney’s fee of $9,000.00, which had been entered against the appellees, Robert V. MacKenzie and Jennie MaсKenzie, his wife, in favor of the appellant, Benjamin B. Weitz. Because we shall reversе the order, a brief discussion of the underlying facts is indicated.
In early July, 1973, $55,000.00 was borrowed from Ameriсan National Bank of Maryland (the Bank). The note evidencing the borrowing, which by its terms was due оn 1 October 1973, was executed in this fashion:
“Pets & Things, Inc.
Benjamin B. Weitz (seal)
Edward G. Marram (seal) ”
“Pets & Things, Inc.” was typed; the seals beside the signatures appeared on the printed form provided by the Bank.
Nearly a year before the borrowing occurred, the Bank had received a guaranty agreement signed by Joel Kline; Edward G. Marram 1 and Beverly S. Marram, his wife; Benjamin B. Weitz and Myrna Weitz, his wife, and the MacKenzies. The agrеement jointly and severally guaranteed the payment of any obligations which Pets & Things, Inc. might оwe the Bank, to a maximum limit of $60,000.00. By its terms, the guaranty was assignable; authorized the entry of a confessed judgment, and provided for the payment of costs and a 15% attorney’s fee.
When there was a default in the payment of the note, Weitz purchased the note from the Bank for $60,000.00 on 7 January 1974; received an assignment of the guaranty agreement, and on 31 January 1974, caused judgment by
Within 30 days of the entry of judgment against her, Beverly S. Marram moved to vacate it, alleging that her signаture on the agreement of guaranty was a forgery. On 22 March 1974, Edward G. Marram moved to vaсate the judgment against him, alleging that Weitz was a co-guarantor, and therefore liable for contribution. Both motions were granted, and the Marrams were required to plead.
It wаs not until 15 April 1974 that the MacKenzies filed their motion to vacate the judgment against them. Their mоtion was bottomed on the theory that Weitz, as a co-guarantor, had discharged the оbligation by purchasing it from the Bank, and had obtained judgment against his co-guarantors by fraud, mistake or irregularity, since they were responsible only for the payment of their ratable share,, and not for the entire amount of the note.
Seemingly, the trial court found what it regardеd as an irregularity in the fact that the note was signed in a fashion which made it impossible to determine whether the obligation was intended to be that of Pets & Things, Inc., or that of Weitz and Marram individually, who had signed without indicating that they were signing in a representative capacity. 2 The court was troubled by the idea that the agreement of guaranty purported to guarantee only the obligations of Pets & Things, Inc.
Judgment by confession had been entered against the Mаrrams and the MacKenzies. As a result of timely motion made in her behalf, the judgment against Mrs. Marram was vacated.
Rule 625 a provides:
“For a period of thirty days after the entry of a judgment, or thereaftеr pursuant to motion filed within such period, the court shall have revisory power and cоntrol over such judgment. After the expiration of such period the court shall have revisory power and control over such judgment, only in case of fraud, mistake or irregularity.”
Under our eases, an irregularity which will permit a court to exercise revisory powers ovеr an enrolled judgment has been consistently defined as the doing or not doing of that, in the conduct of a suit at law, which, conformable to the practice of the court, ought оr ought not to be done, Mutual Benefit Society of Baltimore, Inc. v. Haywood, 257 Md. 538, 263 A. 2d 868 (1970); Household Finance Corp. v. Taylor, 254 Md. 349, 254 A. 2d 687 (1969); Himes v. Day, 254 Md. 197, 254 A. 2d 181 (1969); Grantham v. Board of County Comm’rs for Prince George’s County, 251 Md. 28, 246 A. 2d 548 (1968); Berwyn Fuel & Feed Co. v. Kolb, 249 Md. 475, 240 A. 2d 239 (1968). As a consequence, irregularity, in the contemplation of the Rule, usually means irregularity of proсess or procedure, Shaw v. Adams, 263 Md. 294, 283 A. 2d 390 (1971); Penn Central Co. v. Buffalo Spring & Equip. Co., 260 Md. 576, 273 A. 2d 97 (1971); Mutual Benefit Society of Baltimore, Inc. v. Haywood, supra, and not an error, which in legal parlance, generally connotes a departure from truth or accuracy of which a defendant had notice and could have challenged, Berwyn Fuel & Feed Co. v. Kolb, supra, 249 Md. at 478-79. See also A bell v. Simon, 49 Md. 318, 322-24 (1878).
Additionally, the party who seeks to invoke the court’s revisory power must show by satisfаctory proof that he is acting in good faith, with ordinary diligence, and that he has a meritorious defense, Murray v. Fishman Constr. Co., 241 Md. 538, 547-48, 217 A. 2d 357, 363 (1966); Tasea Investment Corp. v. Dale, 222 Md. 474, 479, 160 A. 2d 920, 923 (1960); Rule 645 c. There was no such showing here.
Order reversed; costs to be paid by appellees.
Notes
. On the guaranty agreement there was typed under Marram’s signature “Edward P. Marrаm.”
. If Weitz was not a holder in due course, see Uniform Commercial Code (UCC) § 3-302, Maryland Code (1957, 1964 Repl. Vol.) Art. 95B, § 3-302, the trial court could have resolved this ambiguity by taking parol testimony to establish the intention of the parties, UCC § 3-403 (2)(b), Code Art. 95B, § 3-403 (2)(b); Lesser v. Todd Cigarette Service Co., 267 Md. 524, 298 A. 2d 151 (1973); Seale v. Nichols, 505 S.W.2d 251 (Tex. 1974). See also A. S. Abell Co. v. Skeen, 265 Md. 53, 288 A. 2d 596 (1972).