Berwyn Fuel & Feed Co. v. Kolb

Horney, J., delivered the opinion of the Court. The question presented by this appeal is whether the trial court, absent a showing of fraud, mistake or irregularity, erred in striking out a judgment by default that had been entered more than thirty days before the filing of a motion to set the judgment aside. We think it did. The plaintiff-appellant is the Berwyn Fuel & Feed Company, Inc. The defendant-appellee is John P. Kolb.

In a declaration based on three of the common counts — goods bargained and sold, work done and materials furnished and money found to be due on accounts stated between them — the plaintiff sued the defendant on May 8, 1963, for $9,441.76 it claimed was due it. The defendant demanded the particulars of the claim on May 20, 1963. And the plaintiff, answering the request for particularization, complied therewith by submitting photostatic copies of the original ledger sheets and vouchers for the delivery tickets on September 30, 1963, but the defendant did not file a plea. No further action was taken by either party until July 12, 1965, when on motion of the plaintiff a judgment by default was entered against the defendant.

On August 25, 1965, forty-three days after the entry of the default judgment, the defendant ⁴⁷⁷ filed a motion to set it aside and assigned as reasons therefor that he had a good defense in that the obligation was a corporate debt and not a personal one and that the matter had theretofore been fully adjudicated in proceedings in the Circuit Court for Prince George’s County in which a judgment was entered in favor of the defendant, but the motion was silent as to the judgment having been obtained by fraud, mistake or irregularity. Again, no further action was taken for more than a year. In the meantime the clerk of court, for some reason not disclosed by the record, relegated the case to the stet docket where it remained until it was reinstated on the regular docket on March 6, 1967. When the motion to set aside the default judgment came on to be heard on June 15, 1967, the trial court (Pugh, J.), after hearing the arguments of counsel but no evidence, struck out the judgment on the ground that it “appears to be irregular.” Maryland Rule 625 a, concerning the revisory power of courts over judgments, provides that: “For a period of thirty days after the entry of a judgment, 1 or thereafter pursuant to motion filed within such period, the court shall have revisory power and control over such judgment.

After the expiration of such period the court shall have revisory power and control over such judgment, only in case of fraud, mistake or irregularity.” In its opinion, the trial court, after noting that a final money judgment had not been entered, went on to say: “Since the motion was filed more than 30 days after the default judgment was entered, it is essential that the court find that the judgment was entered by fraud, mistake or irregularity pursuant to Maryland Rule 625, before the judgment may be stricken. The movant contends that the judgment entered was irregular and fraudulent because the debt sued on was a corporate debt and not an individual debt of the defendant. A ⁴⁷⁸ careful review of the vouchers filed show that six of the vouchers, totaling $1664.75 are in the corporate name and three vouchers totaling $775.62 are in the name of the defendant and [another person]. The only-record of the amount of the claim is set forth in the declaration in the amount of $9441.76.

Assuming this to be the correct amount of the claim, the total vouchers not in the defendant’s individual name amount to $2440.37. There appears to be merit in the movant’s claim of irregularity and fraud in obtaining the default judgment since all the vouchers are not in the defendant’s name. The record further shows that at all times the defendant was represented by counsel in the case and there is no evidence before the court that defendant’s attorney of record was advised of the contemplated action of the