Hart v. Hart

Parke, J., delivered the opinion of the Court. On September 26th, 1930, the Circuit Court for Anne Arundel County, by its order in writing, entered a judgment by confession for the sum of $3,000 in favor of Beatrice E. Hart and against Walter H. Hart. The term and succeeding ones expired, and then, on December 15th, 1932, the defendant filed a petition praying that the judgment be stricken from the records and the suit dismissed. The court passed an order directing that the judgment be stricken out and the suit dismissed, unless cause to the contrary be shown on or before the 28th of December, 1932..

The plaintiff demurred to the petition, and its demurrer was overruled, and the question on the petition was then heard. By the petition, the defendant had assumed the position of an actor, and the burden of proof was upon him to support his allegations of fact with evidence. Ho testimony appears on the record and, so, it must be held that none was offered. The trial court, however, will take notice of the record of the cause at bar, and consider the admissions made by the pleadings of the parties in connection with this record.

The plaintiff did not deny by subsequent pleading the allegations of fact which required affirmative proof on the part of the defendant and petitioner. So, the averments of the petition must be taken as admitted and these averments may be regarded, with the ⁷⁹ record of the prior proceedings in the case, as the facts upon which the nisi prius court dismissed the petition of the defendant that the judgment against him be stricken out. Stump v. Henry, 6 Md. 201 ; Elwood v. Lannon’s Lessee, 27 Md. 200, 209, 210 ; Zihlman v. Cumberland Glass Co., 74 Md. 303, 307 , 22 A. 271 ; Hensel v. Johnson, 94 Md. 729, 734 , 51 A. 575 ; Matthews v. Matthews, 112 Md. 582, 589 , 77 A. 249 ; Geesey v. Stouch, 94 Md. 75 , 50 A. 422 ; Johnson v. Phillips, 143 Md. 16, 20, 21 , 122 A. 7 . There is no testimony, not even an allegation, that the jirdgment attacked was obtained by any form of fraud, or by mistake, or that the defendant had a meritorious defense, or that the obligation had been discharged or paid in whole or in part.

The defendant relies wholly on the contention that the judgment is void because it was entered before the maturity of the promissory note in which the power to confess a judgment was a part. The defendant executed and delivered to the plaintiff eight promissory notes, bearing date April 15th, 1930, for an indebtedness of $24,000. Every one of these notes was for the sum of $3,000, without interest. One note was payable one year after date, and the others, successively, at the interval of one year, so that the eighth note matured on April 15th, 1938.

The only variation in form of the eight notes was the number of years after date the notes became due. Before the maturity of any of the notes, the plaintiff docketed eight separate cases against the defendant in the Circuit Court for Anne Arundel County, on September 26th, 1930; and the court passed an order on the same day directing the entry of a judgment in every one of the cases, after an appearance had been entered for the defendant pursuant to the terms of the notes. The note in the case now at bar was of this tenor: “$3000. Annapolis, Md., April 15, 1930. “Four years after date, for value received, I promise to pay to the order of Beatrice E. Hart the sum of three thousand dollars, without interest from date; ⁸⁰ hereby waiving the benefit of all exemption and stay laws; and if this note is not paid when it becomes due, the makers and endorsers, jointly and severally authorize the Clerk of the Circuit Court for Anne Arundel County, Maryland, or any Justice of the Peace, to enter, or any attorney of any court of record to appear and, confess judgment, at or before maturity for the above sum including costs. “Walter H. Hart. “Witness: [Nicholas H. Green.” The defendant maintains that the proper construction of this paper writing is that it does not authorize a judgment by confession unless the sum agreed is not paid when it becomes due.

If this position be sound, the judgment obtained should be vacated, as it was entered before the note matured. This construction, however, gives universal application to the conditional phrase “if this note is not paid when it becomes due,” and entirely ignores the operative words “to appear and confess judgment, at or before maturity for the above sum including costs.” [Furthermore, the construction ascribes a