Bailey v. Jones

Briscoe, J., delivered the opinion of the Court. The bill in this case was filed by the appellees against the appellants in the Circuit Court for Wicomico County, in equity, to annul and vacate a deed conveying certain real estate, situate in Wicomico County, by one Goldsborough R. Bailey to the appellant, Lida E. Bailey, alleging it to be a cloud upon the appellees’ title to the property in question. ⁴⁰⁷ The original bill was filed on the 2nd of April, 1906, and the defendants were duly summoned to appear and answer the bill. On May 23rd, 1906, Mr. Joseph L. Bailey, a member of the Wicomico County bar appeared for the defendants. Subsequently, on January 2nd, 1907, by leave of Court, an amended bill of complaint was filed, and the defendants were duly summoned thereto.

According to the docket entries, the following proceedings appear to have been had in the Court below: March 18th, 1907, Order of J. L. Bailey for appearance for defendant filed. April 2nd, 1907, Petition and decree pro confesso filed and order referring to the examiner filed. June 6th, 1907, Interrogatories and testimony filed. June 22nd, 1907, Final decree of Court setting aside deed filed.

August 21st, 1907, Order and affidavit for appeal. August 22nd, 1907, Appeal bond approved and Petition to stay decree filed. November 14th, 1907, Order to transmit record to Court of Appeals filed by defendants. It will be thus seen, that while the defendants were duly summoned to appear to both the original and amended bills, and did in fact appear by attorney to each of them, they failed to plead or answer the bill, or to make any defense whatever to the jurisdiction of the Court to grant the relief prayed for, or to contest the right of the plaintiffs to the relief sought by the bill upon the merits of the case.

On the contrary, no steps appear to have been taken by the defendants, after their appearance on March 18th, 1907, until August 21st, 1907, when they ordered an appeal to this Court from the final decree dated the 22nd of June, 1907, adjudicating the rights of the parties to the suit. The objection that the decree pro confesso was passed before the expiration of the twenty days from the time of appearance entered, allowed by the rules of Court within which to answer, cannot" avail the defendants in this case. ⁴⁰⁸ The decree pro confesso is dated April 2nd, 1907, and there were no proceedings under this decree until June 6th, 1907, when the testimony was taken upon notice to the defendants and filed in Court. The evidence remained in Court from June 6th to June 22nd, subject to exception, before the final decree was passed by the Court below. The granting of the decree pro confesso one week prior to the time allowed by these rules did not prevent the defendants from coming in and asserting their defense.

Under 143 sec. of Art. 16 of the Code, it is provided that any defendant against whom an order to take a bill as to any matter or thing pro confesso may be passed, may appear at any time before final decree and file his answer, or oath to the bill * * * and on such answer being filed, such proceedings shall be had as would or might have been had in case such answer had been filed before the passage of such decree. Belt v. Bowie, 65 Md. 350 ; Wagner v. Shank, 59 Md. 313 . In this case the defendants, having appeared by counsel, must be charged with knowledge that by the. law they were required to answer the plaintiff’s bill and that they would proceed to final decree, upon default of answer. These defendants, had actual notice of the decree pro confesso on June 3rd, from the examiner before taking the testimony, two months after passing of the decree, and they failed to appear or to make any defense whatever to the procedure thereunder.

In Rust v. Lynch and Jackson, 54 Md. 639 , it is said: “Decrees are not lightly to be disturbed or vacated, after enrollment, though entered upon default of the defendants; and it is only when there are strong and special circumstances shown and the conduct of the party applying