Gelzer v. Scamoni

Prescott, C. J., delivered the opinion of the Court. When the trial court refused to strike out a confessed judgment that had been obtained against him, appellant noted this appeal. In his application to open the judgment, he named three allegedly meritorious defenses. Maryland Rule 645.

Appellant was weak and vacillating as a witness, and failed, utterly, to show a “meritorious” defense in either of his two claimed ones upon which he was allowed to give testimony; but his third alleged defense was a full set-off, and the court refused to hear testimony concerning the same, on the theory that set-off could not be offered as a defense in order to open up a confessed judgment. The trial judge, inter alia, stated: “Yes, but a question of set-off has nothing to do with the judgment [in this case]. * * * Not on a set-off. * * * If he [appellant] has a claim against him [appellee], why all he has got to do is to get judgment and then one judgment is set off against the other. * * * If this man [appellee] owes him [appellant] money, why there is nothing to stop him [appellant] from bringing suit.” The judge then refused to hear testimony in regard to the alleged set-off. In so doing, he fell into error. In Stankovich v. Lehman, 230 Md. 426 , we set forth with considerable specificity the tests to be applied to determine whether an alleged defense to a confessed judgment is a