JB CORPORATION v. Fowler

Smith, J., delivered the opinion of the Court. We here hold that there was an abuse of discretion upon the part of a judge who refused to set aside a judgment before it became enrolled to permit a plea of set-off. Appellee, Howard James Fowler (plaintiff), sued appellant, J. B. Corporation (defendant), in the Circuit Court for Harford County. The suit alleged purchase by plaintiff from defendant of an airplane with $3,000.00 paid down, that defendant “proposed and the Plaintiff agreed to negate and void the sale of said airplane by the Defendant to the Plaintiff”, and that defendant had refused to refund the sum of $3,000.00 to plaintiff.

A motion for summary judgment with the required notice was appended to the declaration together with an affidavit in support of the motion. Defendant filed a general issue plea. It failed to file an answer to the motion for summary judgment. At an ex parte hearing the motion for summary judgment was granted and judgment entered in favor of plaintiff against defendant in the amount of $3,000.00.

On this ⁴³⁴ judgment plaintiff two days later issued a writ of fieri facias. This produced action! Six days later defendant filed a motion to strike the judgment reciting that “ [t] hrough inadvertence, Defendant’s attorney filed only a General Issue Plea to Plaintiff’s Declaration and no specific answer to Plaintiff’s Motion for Summary Judgment”, that there was “a genuine dispute between the parties and Plaintiff’s counsel had admitted the same to Defendant’s counsel”, and prayed opportunity to file an affidavit in opposition to the affidavit which was filed in support of the motion for summary judgment. In denying the motion the trial judge said in part: “The Defendant moved, within the 30 day period allowed, to strike the Judgment for the Plaintiff.

The Affidavit in support of said Motion alleged a total of $2,546.13 as a credit against the $3,000.00 refund. After arguments were heard and after due consideration, this Court feels that the Defendant has shown what may be a valid counterclaim for rental use of the plane, flying time, and supplies furnished by the Defendant. But the fact remains that there is no genuine dispute as to the $3,000.00 paid by the Plaintiff. The Defendant must plead his case separately.” In Clarke Baridon v. Union Co., 218 Md. 480 , 147 A. 2d 221 (1958), Judge (now Chief Judge) Hammond said for the Court: “After the judgment properly was entered, the question of whether it should or should not be vacated in whole or in part was within the sound discretion of the trial court for the ensuing thirty days.

The decisive point no longer was whether there existed a genuine dispute as to a material fact, but rather whether the court was satisfied that there had been shown a reasonable indication of a meritorious defense or other equi ⁴³⁵ table circumstances that would justify striking the judgment — that is, whether the court entertained a reasonable doubt that justice had not been done. Phelps v. Herro [ 215 Md. 223 , 137 A. 2d 159 (1957)] ; 2 Poe, Pleading and Practice (5th Ed.), Sec. 392; Smith v. Lapidus, 208 Md. 273, 279 .” Id. at 483. In Ryan v. Johnson, 220 Md. 70 , 150 A. 2d 906 (1959), there was a summary judgment entered in favor of the plaintiff. Motion to strike was filed within 30 days.

Chief Judge Bruñe said for the Court: “We think that the asserted defense that the payments were gifts,