Guerriero v. Friendly Finance Corp.

Hammond, J., delivered the opinion of the Court. The Friendly Finance Corporation, the appellee, obtained a judgment against Peter Guerriero, one of the appellants, in August 1957. In June 1960, Friendly filed a bill against Guerriero, his wife, his daughter and son-in-law, and two corporations, the other appellants, alleging the judgment was unpaid and Guerriero was ostensibly insolvent but that the other appellants held property of various kinds which had been fraudulently transferred to them by Guerriero and was held by them as his nominees. The prayers were that the chancellor declare that the appellants, other than Guerriero, held the property mentioned in the bill as his nominee and that it was subject to execution and satisfaction of Friendly’s judgment against him.

The appellants answered, not under oath, denying the significant allegations of the bill. On July 26, 1960, Friendly filed a series of written interrogatories pertaining to the transfers alleged to be fraudulent and the holdings of the appellants, to be answered under oath. The interrogatories were not answered (although appellants claim they tendered answers to the clerk on February 23, 1961, and were rebuffed), and on February 16, 1961, Friendly moved for a decree pro confesso. The court, noting that appellants had failed to keep an agreement to file the answers by February 20, entered a decree pro^ confesso on its own initiative on February 21.

Appellants’ counsel moved to strike the decree. The motion was denied and dismissed with prejudice. Subsequently, on an affidavit and testimony offered by Friendly, a final decree in its favor was entered on March 14, 1962. The decree held the real and personal property referred to in the bill to be subject to execution and sale in satisfaction of the judgment against Guerriero.

The appellants argue to us that (a) under Maryland Rule ²²⁰ 675 a 1 the trial court must accept answers to interrogatories which are tendered within thirty days of the entry of a decree pro confesso; (b) the chancellor abused his discretion in refusing to strike the decree; and (c) assuming the trial court properly granted the decree pro confesso, it erred in entering a final decree. There is little factual and no legal support for the first contention. The interrogatories were filed on July 26, 1960. Friendly says that on August 25, 1960, its counsel advised the lawyer then representing the appellants (who is not the lawyer who argued on appeal) that the answers were overdue.

Appellants’ then counsel says he was under the impression he had answered, until on February 8, 1961, he received a letter from Friendly’s lawyer requesting that the interrogatories be promptly answered so that the case could be tried. When no answers had been filed by February 16, Friendly filed a motion for a decree pro confesso, mailing a copy of the motion to appellants’ lawyer. Apparently the same day that lawyer had written Friendly’s lawyer, stating he would file answers in about a week. The next day appellants’ lawyer telephoned Friendly’s lawyer to request withdrawal of the motion for a decree pro confesso.

The request was denied, but Friendly’s lawyer did advise appellants’ lawyer and the court that he would not press the motion if answers were filed by February 20. The answers were not filed; and on February 21, Judge Allen, who by then was fully familiar with the case, signed the decree, sua sponte. On February 27, appellants’ lawyer filed a petition to strike the decree pro confesso in which he alleged that “on February 23, 1961, your Petitioner attempted to file Answer to Interrogatories but was advised that this could not be done as a Decree Pro Confesso had already been signed. Your Petitioner did not learn of this by reason of being out of town until Friday, February 24th,” (at the argument we were told he had attempted to file the answers with the clerk, who refused to accept them).

The petition was signed by the lawyer as petitioner, and he ²²¹ personally made the affidavit as to the truth of its allegations. There is nothing in the docket entries of the case to indicate that the appellants tendered the answers to the clerk or that the clerk refused them. There is no suggestion that appellants’ lawyer asked the court to require the acceptance of the answers. It is difficult to understand how the lawyer could have tendered the documents to the clerk for filing on the twenty-third and have been refused, if he did not, as he alleges in his petition, “learn of this” refusal until the next day because he had been out of town.

He did not attach a copy of the answers to his petition to strike the interlocutory decree, filed on February 27, just four days after he says he attempted to file the answers, or proffer them to the court at the hearing on the petition. It is to be noted that the appellee has not to this day seen the