88 A. 259 | Md. | 1913
By the bill of complaint in this case the following facts are alleged: On April 30, 1900, the appellant, Edwin M. Wilmer, obtained a judgment for $43.98 against John J. Spellman before a justice of the peace of Baltimore City. The judgment debtor subsequently died. In 1912 a writ of scire facias was issued at the appellant's instance for the purpose of renewing the judgment. The writ was served upon the appellee, Margaret Trumbo, as the personal representative of the deceased debtor. She appeared before the justice of the peace who issued the writ and testified that she was not Spellman's personal representative and had no knowledge of his affairs; that he had a daughter by the name of Margaret Trumbo, but that she was then dead. This was the only testimony taken before the justice. The appellee was not indebted in any capacity to the appellant, and in view of the uncontradicted proof that she was not the personal representative of the judgment debtor she believed that so far as the was concerned the case was dismissed. A judgment, however, was, without her knowledge, entered in the case by the justice against Margaret Trumbo, personal representative of John J. Spellman, for $90.60, and it was placed on record in the office of the Clerk of the Superior Court of Baltimore City. In January, 1913, the appellee filed the bill now under review setting forth the facts just stated, and alleging further *447 that the appellant had caused a writ of fieri facias to be issued on the judgment, and that in the execution of the writ the Sheriff of Baltimore City had levied upon and was proposing to sell certain lots of ground of which the appellee was the owner. It was charged that the judgment was obtained by fraud and that to subject the appellee's property to its payment would be unconscionable. The bill prayed that the execution be restrained by injunction. The appellant demurred to the bill and this appeal is from the order of the Court below overruling the demurrer with leave to answer.
Upon the allegations of the bill, which are admitted to be true for the purposes of the present inquiry, the appellee is clearly entitled to equitable relief. The judgment sought to be enforced is against Margaret Trumbo, personal representative of John J. Spellman, and it is conceded by the demurrer that the appellee does not answer to that description. The service of the writ ofscire facias upon her was plainly due to a mistake as to her identity. There was ample ground for her belief, under the circumstances stated in the bill, that the error having been proven without dispute no action could be taken in the case by which she would be in any way affected. It would be subjecting her to an unreasonably strict and rigorous rule to deny her the aid of a court of equity merely because she failed to give further attention to a proceeding in which she was formally shown to have no interest of any kind and to appeal from a judgment by which, as she was fully justified in believing, she could not possibly be bound. Even if the appellee were in fact the executor or administrator of the deceased debtor, the judgment could not be executed as against her individual property. Where a scirefacias to revive a judgment after the death of the defendant is issued against his personal representative, the new judgment thus obtained binds only the decedent's assets. Tiers v. Codd,
It is objected that the bill is not accompanied by exhibits of the judgment, the writs of scire facias and execution, and appellee's deed for the property which has been seized. The rule is that if an applicant for relief by way of injunction "has in his possession or can produce authenticated copies of papers or instruments of writing on which his equity rests," they must be exhibited in support of the bill "in order that the Court may see that he is entitled to the relief prayed." Nagengast v. Alz,
Order affirmed, with costs, and cause remanded. *449
