Craig v. Hebron Building & Loan Ass'n No. 2, Inc.

Shehan, J., delivered the opinion of the Court. The appellant, Elizabeth E. Craig, signed and delivered to the National Home & Improvement Company an alleged promissory note for $275, with interest, dated March 15th, 1932, which provides for monthly payments of $25. By the terms of this note any attorney of any court of record was authorized to appear and confess judgment in favor of the holder thereof for such an amount as remained unpaid thereunder. The note came into the hands of the appellee, the Hebron Building & Loan Asso ⁵²⁴ ciation No. 2.

Default ¡having occurred in the payment of certain installments, judgment was entered thereon in the Circuit Court for Anne Arundel County on October 22nd, 1932, for the sum of $200, with interest and costs. The defendant did not have notice of this judgment until long after its entry, and not until July 19th, 1935, was a fieri facias issued thereon. The property was then advertised for sale, and the appellant thereupon filed a motion to strike out the judgment, supported by a lengthy petition, verified by affidavit, and setting out the facts relied upon to sustain the motion, and accompanied by additional sworn statements of facts and circumstances surrounding the obtaining of the note. The petition charges that the alleged note was procured by misrepresentations, fraud, and undue influence practiced upon the appellant by Samuel A. Forchlager, an individual trading under the name of the National Home & Improvement Company.

To this petition and motion the appellee filed a combined demurrer and answer. The demurrer was sustained, but no judgment or order was entered in consequence thereof. From this ruling, sustaining the demurrer, the appeal herein was taken. For reasons hereafter stated this procedure is not approved.

The appellee contends that the ruling on the demurrer did not constitute a final (disposition of the matter, and therefore an appeal on the law side of the count cannot be taken therefrom, or from any other ruling, judgment, or order that does not finally conclude or dispose of the matter before the nisi prius court. But it seems to the court that the procedure in this case is mistaken, and that, properly viewed, there is no question of finality of the action of the court. A motion to strike out a judgment, like many other motions, such as a motion for a new trial, is. not, in our practice, a subject of extended pleading. After its filing, with such substantiation in respect to facts as the parties think necessary, the motion is set down for a hearing, and at the hearing all questions of fact and of law are before the court for decision, without further pleading. 2 Poe, Pl. & Pr. sec. 394.

Therefore ⁵²⁵ the demurrer in this, instance was a superfluous method of presenting the point of law, and should be disregarded. There is but one action on a motion, in the alternative, a sustaining of it, or an overruling of it, sometimes under conditions. In ordinary course, the action of the court in sustaining the demurrer, holding that the motion is not supported in law in this instance, no amendment or further proceedings on it being contemplated, would be regarded as nothing more or less that the ordinary overruling of the motion, and the court would conclude that the proceeding should all be treated as the ordinary proceeding on motion and the action final and ready for an appeal. The lower court was of the opinion that the facts presented in the petition and in the affidavits were not sufficient to sustain that contention.

The judgment therefore stands unimpaired. We do not agree with that conclusion, assuming the facts so alleged to be true. The appellee also urges that there was delay amounting to laches on the part of the appellant in presenting her petition and motion, and in consequence of this she is not entitled to the relief prayed, and further contends that the appellee, as a bona fide holder of the note for value without notice, is entitled to the judgment recovered thereon, regardless of any fraud practiced upon the appellant, because she had signed the alleged note, thereby enabling the payee of the note to negotiate it. The appellant urges that the obtaining of the signature to this alleged note was under false representations made by Samuel A. Forschlager as to the nature of the paper, inducing her to believe that she was merely signing a permit for him to go upon and inspect the property, in