Adelburg v. Stryjewski

Collins, J., delivered the opinion of the Court. This is an appeal from an order striking out an enrolled or final judgments The appellant, plaintiff below, filed on June 22, 1951, a declaration under the common counts and a special count for eggs sold and delivered to the appellee, defendant below. Accompanying the declaration was a Motion for Summary Judgment, notice to the defendant to make a defense within the time allowed by law or rule of court, Affidavit in Support of Motion for Summary Judgment with vouchers attached, and affidavit of NonMilitary Service. The docket entries show that the appellee was returned summoned by the sheriff.

No plea having been filed by the appellee, summary judgment was entered and damages assessed for $950.70 and costs of suit on August 29, 1951. On October 3, 1951, the appellee, by his attorney, appearing in court for the first time, filed a motion with affidavit to strike out the judgment for the following reasons: “First: That he is not indebted as alleged; Second: That the vouchers attached to the said Declaration are fraudulent; Third: That the accounts stated are untrue.” No other reasons or facts were stated. On this motion, on the same day, October 3, 1951, the court ordered that the judgment be stricken out and the defendant therein be authorized to plead- to the declaration filed therein, provided the plaintiff show cause on or before October 18,1951, why this relief should not be granted. On October 9, 1951, the appellant filed an answer to the motion, denying fraud and setting ³⁴⁹ out, among other things, the fact that the defendant was summoned, failed to plead or interpose any defense and that the motion was filed more than thirty days after the entry of the summary judgment.

On December 20, 1951, on the motion and answer and without taking any testimony and in the absence of the attorney for the appellee, the judgment was finally stricken out. On January 10, 1952, an appeal was entered to this Court, and on that day for the first time was filed by the appellee a plea, and an Affidavit of Defense. On appeal, this Court can review only the record before the lower court. Union Trust Company of Maryland v. Harrisons’ Nurseries, Inc., 180 Md. 651, 657 , 26 A. 2d 812 .

As the motion to strike out the judgment was not filed within thirty days of the date of the entry thereof, it had become enrolled. Rule 1 of Part Two, Section VI of the General Rules of Practice and Procedure, 1947 Supplement of the Code, page 2047. Poe on Practice, Tiffany Edition, Section 890, page 368. It is a well known principle of law in this State that after a