Bolotin v. Selis

²⁴¹ Henderson, J., delivered the opinion of the Court. A judgment by confession was entered in this case and, on motion, the trial court passed an order declining to strike it out after hearing. The appellant contends that this was error. The facts are meager but undisputed.

The appellant and Augustus Selis executed two promissory notes dated August 1, 1955, and September 9, 1955, each payable 90 days after date to the order of The National Metropolitan Bank of Washington, containing an authorization for any attorney of any court of record to appear for the makers and confess judgment for such amounts as may be due and unpaid. Both notes were endorsed by Leopold Selis and subsequently paid by him at the Bank. He filed his declaration, affidavit of merit and the two notes, in the Circuit Court for Montgomery County, on December 21, 1955, and judgment was entered on the same date. A writ of summons was served upon the appellant, who filed his motion to strike on January 19, 1956, “appearing specially” for the purpose.

The grounds of the motion were that the defendant “is not now and never was indebted to the plaintiff as alleged”, that “this defendant never promised to pay the plaintiff as alleged”, and that “this defendant signed the promissory notes, * * * solely for the accommodation of the plaintiff, and his son Augustus Selis, * * *.” The motion also prayed leave to file pleas. An affidavit was attached to the motion stating that “the matters and things set forth therein are true in substance and fact.” It does not appear that any evidence was offered in support of the motion at the hearing. The Rules of Practice and Procedure, Part Three, II, Rule 1 (b) (designated as Rule 645 b. in the Revised Rules effective January 1, 1957), provides, in part, that a defendant, upon receipt of summons, may show cause within thirty days “why the judgment should be vacated, opened or modified”, and that “any application”, so made, shall be promptly heard, “and such action taken as the court may deem just.” In Foland v. Hoffman, 186 Md. 423, 431 , it was said: “This rule requiring a defendant to be summoned and show cause within thirty days from service upon him of a nisi order why the ²⁴² judgment should be vacated, opened, or modified, did not change the existing practice in such cases. It provided a means to inform the judgment debtor of the judgment, and afforded him an opportunity to move that it be vacated, opened, or modified.

He should file a motion under oath, setting out fully all the facts and circumstances tending to show that the judgment should be stricken out, * * *. Upon proper proof, the court will so order. Eor a full treatment of the proper practice see Keiner v. Commerce Trust Co., supra, 154 Md. [366] at pages 370, * * *." In the Keiner case it was said (p. 370) that “* *. * although such a motion ‘must be supported by satisfactory proof of conditions which make such