Harrison v. Morton

Boyd, J., delivered the opinion of the Court. The appellee filed a bill in equity against the appellants alleging that contemporaneous with the execution and delivery by them to him of a deed, which is absolute in terms, he entered into an agreement with them by which he agreed that upon payment by Walter H. Harrison to him of a promissory note for the sum of twenty-five hundred dollars, and upon compliance with certain conditions named in the agreement, he would reconvey the property to either of the defendants or such person as they might designate. The note is alleged to have been long since overdue and unpaid, and the plaintiff claimed a lien in the nature of a mortgage. A subpoena was issued returnable on the second Monday of January, .1897, which the sheriff returned “summoned ambo.” On the third day of March, 1897, a decree pro confesso was passed, in which it was stated that the defendants had been returned, summoned and had failed to appear.

Testimony was taken on the 6th day of April, 1897, and, having been returned, the case was referred to ⁶⁷³ an auditor and master, and after his report a final decree in due form was passed, appointing a trustee to sell the property, if the amounts therein named be not paid within thirty days. The trustee sold the property, made his report to the Court and an order nisi was passed. Exceptions to the ratification of the sale were filed on the grounds: 1st, that the decree was void, because it was founded on a decree pro confesso for an alleged want of appearance to the writ of summons, when in fact an order had been given to the clerk, and was filed by him, signed by counsel for the defendants, directing him to enter an appearance, and that said order was equivalent to an appearance ; 2nd, that Blanche I. Harrison was not in point of fact summoned, but was so returned upon the understanding that appearance of counsel for the defendants justified such return; 3rd, that the plaintiff had no right to have the property sold by reason of a certain agreement alleged to have been made, and 4th, that the property sold for a grossly inadequate price. Subsequently they filed a petition to vacate the decree for the reasons set forth in the exceptions to the sale.

Testimony was taken, chiefly, as to service of process, and decretal orders were passed overruling the exceptions to the sale and dismissing the petition to vacate the decree. From those orders this appeal was taken. It is contended on behalf of the appellants that the allegations in the bill did not entitle the plaintiff to relief and the Court was without authority to grant the relief given, by reason of the defects in the bill. We have already stated as much of the bill as is necessary to show that the object was to have a lien declared for the amount alleged to be due, and in default of the payment thereof to have the property sold.

We cannot understand how, as between the original parties, there can be any question about the jurisdiction of a Court of Equity to grant the relief prayed for. Inasmuch as the deed, which was an absolute conveyance in terms, was intended only as a security in the nature of a mortgage, according to the allegations of the bill, and ⁶⁷⁴ as the agreement operating as a defeasance was not recorded with the deed, section r of Art. 66 of the Code deprives the plaintiff of any benefit of recording the deed, so far as third persons are concerned, but between the parties it was valid (Owens v. Miller, 29 Md. 144 ), and to make it effective, it was proper to pursue the course adopted. There was no appeal from the decree and we therefore cannot review the action of the Court below as to the sufficiency of evidence, and other matters that were determined by it. The exception on the ground of inadequacy of price has not been pressed in this Court, and there is but little if any evidence in the record reflecting on that subject.

The principal question for our determination is whether the decree pro confesso and the proceedings thereunder were valid. Both of the defendants were returned summoned, but the evidence shows that the deputy sheriff went to the office of Mr. Harrison with the summons, and although there is some discrepancy between the deputy and Mr. Harrison as to what there occurred, the latter admits that the deputy told him he had a summons for him and Mrs, Harrison, and he referred him to Governor Whyte, who was his attorney in this case. The deputy then called on Governor Whyte, who wrote on the back of the subpcena “ Enter my appearance for defts., Wm. Pinkney Whyte.” Upon the faith of that the deputy made the return above mentioned.

The Clerk of the Court, probably not observing the endorsement of counsel, did not enter his appearance, but entered the return of the sheriff on the docket. The object of the service of process is of course to give the parties formal notice of the proceedings, and whilst it must ordinarily be served in one of the methods prescribed by law, yet that can unquestionably be waived by the parties. A voluntary appearance of a party to a suit is a waiver of formal notice. Belt v. Blackburn, 28 Md. 242 , and the most usual way of waiving service is by the appearance of an attorney.

The presumption is that an at ⁶⁷⁵ torney has authority to appear. Kelso v. Stigar, 75 Md. 405 . In the case of Ireton v. Mayor, etc., 61 Md. 432 , the City Counsellor of Baltimore endorsed on the sum-mons, just as was done in this case, “ Enter my appearance for the