Hall v. Holmes

GrasoN, J., delivered the Opinion of the Court. These two cases are contained in the same record, were argued together, and, as the facts and proceedings are the same in both, they will be considered together in this opinion. The first question to be considered, arises upon the motion to dismiss the appeals, upon the ground that an appeal does not lie from an order overruling a motion to strike out a judgment, and the cases of Hawkins vs. Jackson, 6 H. & J., 151 ; Washington vs. Hodgskin, 12 G. & J., 355 ; Thomas vs. Mohler & Graff, 25 Md., 44 , and the Cumberland Coal Co. vs. McKaig, et al., 27 Md., 258 , were cited in support of the motion. In the0 case of Hawkins vs. Jackson, the motion to strike out the judgment was made during the same term at which the judgment was entered, and was based not upon the ground of fraud, deceit or surprise, but upon the allegation that the defendant had employed counsel to defend the suit, who had failed to file the pleas, and because he had a good defence upon the merits.

The motion in that case was- addressed to the discretion of the Court, it was overruled, the defendant excepted and took an appeal, and although the Court of Appeals said that an appeal did not lie under such circumstances, yet the Court did actually entertain the appeal, and reversed the judgment for the reason that the declaration set out no cause of action, but showed that payment of the bill of exchange sued on, was not demanded in time, and that the appellant, who was sued as endorser, was discharged from his liability. The other cases cited by the counsel of the appellee do not apply to the cases now under consideration. It is true that an appeal will not lie from an order of the Court striking out a judgment, where the motion is made ⁵⁶¹ during the term at which the judgment was entered, because, during the term, the judgment is under the control of the Court, and if set aside, the rights of neither party are determined, and the case stands for trial immediately, and the plaintiff may proceed with the trial at the same term. Rut the ease is very different where the motion to strike out the judgment is overruled by the Court; for then the liability of