Craig v. Wroth

Miller, J., delivered the opinion of the Court. The appellant recovered a judgment against Turner and issued an attachment upon it by way of execution, which was laid in the hands of the appellee, Wroth, who was summoned as garnishee. On this, a judgment of condemnation was rendered in 1865, and on this judgment a scire facias to revive it, was issued in June, 1872. In March, 1874, the appellee moved to strike out the judgment and filed as reasons for his motion, that it was obtained by fraud, surprise, and mistake.

This motion was heard and argued in the Court below in October, 1874, and then held under curia until March, 187 6, when the Court sustained the motion, ordered the judgment to be stricken out and the case brought up by regular continuances, and from that order this appeal is taken. The appellee’s counsel has moved to dismiss the appeal upon the ground that the setting aside of the judgment was a matter ef discretion in the Court, and therefore not the subject of an appeal. If the judgment had been stricken out during the term at which it was rendered, this position would be sound. Rutherford vs. Pope, 15 Md., 579 .

But where a Court takes such action after the lapse of the term an appeal lies. This has been frequently decided, and we need refer only to Graff & Gambrill vs. Merchants’ & Miners’ Trans. Co., Garn. of Bernard, 18 Md., 364 , where, as in this case, there was an order striking out a judgment of condemnation on an attachment, after the lapse of the term, and upon full consideration it was held the appeal would lie. The motion to dismiss' is therefore overruled.

The power to set aside judgments upon motion, for fraud, deceit, surprise or irregularity in obtaining them is a com ²⁸³ mon law power incident to Courts of record in this State, and was not conferred upon them by the Act of 1787, ch. 9, sec. 6, which is partially but not fully embodied in section 38, Art. 75 of the Code. This legislation assumes that the power resides in the Courts, and provides for the entering of continuances when it is put in force. In deciding such motions made after the term is past, the Court acts in the exercise of its quasi equitable powers and will therefore properly consider all the facts and circumstances of the case, and require that the party making the application shall appear to have acted in good faith and with ordinary diligence : relief will not be granted when he has knowingly acquiesced in the judgment complained of, or has been guilty of laches and unreasonable delay in seeking his remedy. Kemp & Buckey vs. Cook & Ridgely, 18 Md., 130 ; Montgomery vs. Murphy, 19 Md., 576 , and in the recent case of Sarlouis vs. Fireman's Ins.

Co., Garn. of Siar, decided at April Term, 1876, we have said “where a judgment has been rendered several terms anterior to the motion to strike it out, it would be contrary to a long course of established decisions to disturb it, without clear and convincing proof of fraud, surprise, or irregularity.” These rules must be applied in the case now before us, and to that end we have considered the testimony contained in the record on which the Circuit Court based its action. The interval between the recovery of the judgment in 1865, and the motion in 1874 is nearly nine years, but the difficulty arising from this lapse of time is, we think, clearly and satisfactorily cleared up by the testimony. The judgment it must be remembered is a judgment of condemnation against a garnishee in an attachment, and not for any cause of action as between the appellant and the appellee. The latter in his testimony deposes that before the attachment was levied on him, he saw the appellant who asked him if he had any money belonging to Turner, to which lie replied, that he had not, and that ²⁸⁴ he did not owe Turner a cent, and thereupon the appellant said he was glad he had met him, and that he would tell the sheriff not to serve the attachment,, as it would save trouble and expense: that in a day or two after this conversation the sheriff did serve the writ on him, and he shortly thereafter saw the appellant again and reproached him for not having stopped the service of the writ, to which the appellant replied, that he had not seen the sheriff, but said “I will see him and tell him not to return it:” that he rested upon this assurance of the appellant, gave no further