Brothers v. Tilken Ex Rel. American Employers Insurance

Prescott, J., delivered the opinion of the Court. This is an appeal by the defendant below from a denial of relief in a petition for a Writ of Error Coram Nobis, filed on January 20, 1964, to review the facts surrounding a judgment by default entered against her on January 29, 1959, while she was a minor (and inquisition taken thereon). Appellant attained her majority on November 29, 1959, over four years prior to her filing the petition. The single question before this Court is whether the action of the court below in denying this relief constituted reversible error.

The facts forming the basis of the dispute between the parties, briefly stated, are as follows: On December 10, 1958, suit was filed by appellee, alleging that on or about April 19, 1958, appellant was the owner of certain premises in Baltimore City, and that appellee’s use plaintiff while calling at those premises for the purpose of making a collection on behalf of his employer, was caused to fall through a defective platform and was injured. Said use plaintiff filed a Workmen’s Compensation claim, and proceeded against the appellant in this suit. On December 20, 1958, the appellant was summoned and copies of the narr, notice to plead, and summons were left with her. Upon her failure to plead, a judgment by default was entered against her on January 29, 1959, at which time she was a minor, not attaining the age of twenty-one years until, as stated above, November 29, 1959.

No guardian ad litem was appointed for her. ²⁶⁹ On December 13, 1961, through an attorney, appellant filed a motion to strike the judgment by default. This motion, based upon grounds not presently before this Court, raised no issue of appellant’s infancy. The motion was overruled by Judge Prendergast on June 7, 1962. On September 17, 1963, a judgment on inquisition was made absolute in favor of plaintiffs below.

A subsequent motion to strike the judgment was filed by appellant on January 10, 1964. This motion, which also failed to raise the question of appellant’s infancy, was denied by Judge Carter on January 20, 1964. On January 20, 1964, through her present counsel, appellant filed the petition for a Writ of Error Coram Nobis, alleging for the first time that she was an infant when the judgment by default was entered against her. On February 6, 1964, Judge Carter refused to issue the writ on the grounds that the issue of appellant’s infancy could not be raised at that late date.

The thrust of appellant’s argument is contained in the following statement in her brief: “that she may invoke her infancy as a defense and the failure to appoint a guardian ad litem at any time.” Unfortunately for her, neither the previous cases decided by this Court nor the authorities elsewhere sustain this proposition. It will