Adams v. Gillespie

Walsh, J., delivered he opinion of the Court. On July 14th, 1924, William A. Gillespie, the appellee, filed an action in contract under the Speedy Judgment Act applicable to Baltimore City against Edwin W. Adams, the appellant, Frederick C. Weber and Clay E. Delauney. The appellant failed to file a plea and affidavit of defense within the time required by the act, and on October 28th, 1925, a judgment by default was entered against him for $4,-296.77, that being the full amount claimed against all three of the joint defendants. On November 12th, 1925, Adams filed a motion to strike out the judgment by default, assigning various reasons therefor, and on December 8th, 1925, the lower court passed an order opening the judgment “for the purposes of the trial of said case,” but retained the lien of the judgment and also the lien of all outstanding attachments and executions issued on the judgment, and from this order Adams appealed.

The appellee has filed a motion to dismiss the appeal on the ground that the order appealed from is not a final order and hence no appeal lies, and we think this contention in this case is sound. The general rule on this subject is thus stated in 2 Poe, Pl. & Pr., pages 800-801: “Orders or rulings which do not settle and conclude the rights involved in the action and do not deny to tho parties the means of further prosecuting or defending the suit, are not the subject of appeal at the time they were made.” And on the specific question of appeals from motions to strike out judgments made at the same term they were rendered (or within thirty days thereafter in Baltimore ⁵⁴ City), it has long been settled that the motion is directed to the sound discretion of the court, and that no appeal will lie at the instance of the plaintiff from an order simply striking out the judgment. Glenn v. Allison, 58 Md. 531 ; McLaughlin v. Ogle, 53 Md. 610 ; Waters v. Engle, 53 Md. 182 ; Bridges v. Adams, 32 Md. 577 ; 2 Poe, Pl. & Pr., sec. 389. And there is still less reason for allowing an appeal to the defendant in the absence of conditions in the order which deny him the means of further defending the suit, or at least showing that the order will result in some injustice to the defendant.

Taylor v. Gorman, 146 Md. 207 ; Benson v. Atwood, 13 Md. 57 ; Stockbridge v. Franklin Bank, 86 Md. 200 ; 2 Poe, Pl. & Pr., sec. 324. In Taylor v. Gorman, supra, the Court, in discussing an appeal taken by the defendant from orders striking out after the term a judgment entered on a confessed judgment note, said: “As no appeal was taken by the plaintiff, we cannot review the action of the court below in striking out the judgment upon the terms provided, and the only question to be determined is whether the conditions imposed by the orders referred to were reasonable and proper.” It is not contended that there is anything unreasonable or improper'in the order appealed from in this case, so. far as the trial of the case on its merits is concerned, nor could such a contention be successfully made. The order opens up the judgment and permits the defendant to interpose and take full advantage of any defense be may have, and while it does retain the lien of the judgment, and of any executions or attachments issued and outstanding thereon, pending a final decision on the merits, we cannot say