Abell v. Simon ex rel. Simon

Robinson, J., delivered the opinion of the Court. It has been decided repeatedly by this Court that in support of a motion to strike out a judgment after the term at which it was entered has passed there must be clear and satisfactory proof of fraud, mistake or surprise, and it is hardly necessary to state again the obvious reasons of public policy and of private right in which this well settled rule is founded. Katz vs. Moore, 13 Md., 566 ; Sherwood vs. Mohler, 14 Md., 564 ; Montgomery vs. Murphy, 19 Md., 576 ; Anderson, Garnishee vs. Graff, 41 Md., 601, 608 ; Sarlouis vs. Firemen’s Ins. Comp’y, 45 Md. 245 . ³²³ There is no evidence here of fraud practised on the defendant, and the question and- the only question, is whether there is such proof of mistake or surprise as will justify the Court in setting aside the judgment; and this resolves itself into whether the attachment was served and the appellant summoned to appear as garnishee of Riddle.

If the appellant was summoned and had an opportunity to make his defence and neglected to do so, and judgment was regularly entered, he will not now he heard to say, after the term has passed, that it was obtained by mistake or surprise. Now in support of the judgment we have, in addition to the sheriff’s return, the affirmative testimony of the deputy sheriff himself, who says he remembers distinctly having served the writ and having told the garnishee that a judgment would be entered against him, unless he appeared and attended to the matter The garnishee, on the other hand, remembers that an attachment was laid in the hands of the affiant and of his father, A. S. Abell, that he, the affiant, appeared to that suit and it was subsequently entered “off.” He has no recollection that an attachment was laid in this case and does not believe it was, and denies that he had