Anders v. Devries

Goldsborough, J., delivered the opinion of this Court. The question presented by this appeal is, did the Circuit Court for Frederick county act correctly in overruling a motion to strikeout the judgment appearing in the record? The motion is predicated on the affidavit of the defendant. The judgment was entered on the 10th day of February, 1882, as of the February term.

The form of the judgment as extended by the clerk, indicates it to be by confession, and the defendant was represented by two attorneys. This judgment remained unaffected by any proceeding until the 20th of October following, when the defendant came into Court and, by his counsel, moved to strike it out, as having been entered by mistake, and when he had a bona fide defence. On this motion, made on the 20th of October, the Court ordered the case to ho continued until the second Monday of February then next. At which term, the defendant ²²⁶ filed his affidavit alleging that the' judgment was- entered by mistake, and without his knowledge or consent, he> having instructed his counsel that he had a bona fid& defence on the merits.

He filed another affidavit during the same term, in which he alleged in addition to what is-contained in the first affidavit, that he had paid part of the-pretended claim, or had a legal set-off for more than $260 It does not distinctly appear whether the motion was made* as of the February term, before the October term was called. The affidavit states it was made during the October term, 1862. If in fast made as of the February term, the-judgment was still under the control of the Court, and liable to-be altered or amended, unless such general authority? was limited by some positive rule. See 12 Md. Rep., 141 .

We would infer from the record, that the motion was iu fact made during the October term. In either event, a. sufficient foundation must be laid to sustain the motion, ©specially in the latter case. Has such a foundation been, laid ? In the case of Keighler vs. The Savage Manufacturing Co., 12 Md. Rep., 415 , this Court said, “as to the judgment, prima facie it imports verity, and as to the parties to it, it is conclusive, unless mistake or fraud be shown, and the onus is on those who impeach it.” Commenting on the attempt to show in that case that the ¿judgment was-not an ascertainment of actual