Gay Investment Co. v. Angster

Marbury, J., delivered the opinion of the Court. When the Superior Court of Baltimore City granted the motion of the appellee, Rose Angster, to strike out and vacate a confessed judgment obtained by the appellant, The Gay Investment Company, against the appellee, and others, in the amount of $13,884, plus interest, and attorney’s fee of $1,388.40, but retained the lien of the plaintiff-appellant, the latter brought this appeal. On January 9, 1959, a confessed judgment note in the principal amount of $13,884 was executed in favor of the assignor of the appellant by Club Vending Company, Inc., William Angster, husband of the appellee, and the appellee Rose Angster. Pursuant to the terms of the note, judgment by confession was entered against 'the makers on July 6, 1959, for the full amount, plus a ten percent attorney’s fee.

A summons was issued on July 7, 1959, pursuant to Maryland Rule 645 b as to all the makers, but was returned non sunt. No effort was made by the plaintiff to reissue the summons or to proceed by publication as provided by Rule 645 d and Rule 105. However, the appellee admitted that she had knowledge of the existence of the judgment approximately two years prior to her motion to strike and was aware that a waiver of the judgment was executed by the appellant upon payment of $1,000 on the judgment. This waiver was filed April 25, 1961.

Appellee filed her motion to strike the judgment on May 11, 1962, land at the hearing thereon testified that although she signed the note she did not read it. She also testified that she signed it because her husband had asked her to do so; that she did not know how much money was advanced as consideration for the note; and that she thought she was signing as an officer of the Club Vending Company, Inc., and not individually. She further admitted having had a telephone conversation about two years before the hearing, with Mr. Steinberg, an officer of the appellant, in which they discussed the judgment against her. At the conclusion of the hearing on the motion to strike, the court below denied appellant’s motion ne recipiatwr and granted appellee’s motion to strike, but provided that the lien of the appellant was to be retained. ³²¹ On this appeal we are confronted with a motion to dismiss by appellee on the ground that the order of the court below was not such a final order as permits an appeal under existing rules.

In addition, we are presented with two questions by appellant: (a) did the appellee exercise proper diligence in filing a motion to strike judgment where she had knowledge of the existence of the confessed judgment approximately two years prior to the filing of the motion and she had known that the judgment had been waived for her benefit, and payment had been made on the judgment to secure the waiver more than one year prior to the filing of her motion; and (b) did the allegations in the motion to strike contain a disclosure of facts and circumstances sufficient to warrant the striking out or the opening of the confessed judgment. We will first consider appellee’s motion to dismiss. In doing so, we must of necesshy also consider appellant’s first contention, since the two matters are interdependent. The common law rule was that a court had revisory power to strike out a judgment, including a judgment by confession, on a motion made at the same term at which the judgment was entered. 2 Poe, Pleading and Practice §§ 388-390 (Tiffany’s ed.); Sunderland v. Braun Packing Co., 119 Md. 125 , 86 Atl. 126 .

This rule has been modified through the years and at present is embodied in Rule 625, which gives a court thirty days after the entry of judgment, or thereafter pursuant to motion filed within such period, revisory power and control over the judgment. After the lapse of this thirty day period the power of the court to control and revise the judgment is no longer discretionary. Williams v. Snyder, Adm’r, 221 Md. 262 , 155 A. 2d 904 . When a motion is granted for cause shown during