Kartman v. Miliman

Offutt, J., delivered the opinion of the Court. On November1 18th, 1919, Bessie Miliman, Morris Miliman and Jacob Kartman, as joint makers, executed to the Belford Building and Loan Association, a body corporate, four promissory note® under seal, each for the sum of one hundred dollars, and each payable as to both principal and interest in weekly instalments of two dollars on the principal and twelve cents on account of interest. The four notes were all alike in their terms and each, contained the following power, authorizing a confession of judgment for such amount as might he due' on them in the event of a default: “In case of default in any of the weekly payments herein provided for, and the said note is collected by suit or through attorney, we promise to pay an additional fee of five dollars as collection fees, and we empower any person for us and as the attorney for each of us, to appear before any justice of the peace of the State of Maryland, or any court thereof, in any suit instituted to recover the amount due on said shares and to confess judgment in favor of the said body corporate, and against each of us for such amount as the president or other officer of said body corporate will swear is then due on said note or on said share * * * and we each of us do also waive every right of ⁵⁰⁴ exemption that we now have or may hereafter have, whether it he under the laws of Maryland or under the laws of any other forum.” The notes being in default, suit was brought ou each of them before a magistrate in Baltimore City on or about the eighth day of January, 1923, and ou that day M. Henry Groldstone, as attorney and agent for the plaintiff, appeared before the magistrate and made oath that there was due on each note the entire principal sum of $100, whereupon judgment for that amount was entered by the magistrate in each case against the appellees in favor of the appellant. The judgments were recorded in the Superior Court of Baltimore City, and on or about March 1st, 1923, Jacob Kartman, to- whose use the judgments had been entered, instituted supplementary proceedings on them in that court for the purpose of inquiring into the credits and resources of the judgment debtors, Bessie and Morris Miliman, and on that day it was ordered by that court that they bring in a list of their accounts and credits and all books and papers used by them in their business transactions.

On March the third, two days later, Mr. and Mrs. Miliman filed the bill of complaint in this case, in which they alleged that .the promissory notes upon which the judgments had been obtained had been paid, and that the judgments were obtained without their knowledge or consent, through the fraud-of the equitable plaintiff, and that they had had no opportunity of defending the suits, and in which they asked that the execution of the judgments be enjoined. An answer was filed denying those allegations, and testimony in connection with the issues thus made taken orally in the Circuit Court of Baltimore City, and at its conclusion the court by its decree enjoined the appellant from further prosecuting the s-uit-s or executing on the judgments, hut reserving! to Jacob Kartman the right to> institute any proper action for the recovery of any monies due him by the appellees or either of them, and from that decree the judgment creditors have taken this appeal. ⁵⁰⁵ The first question, with which we are called upon to deal, is whether the magistrate at the time he entered the judgments to which we have referred had acquired jurisdiction of the persons of the appellees. If he had not, then obviously the judgments were nullities and the lower court was empowered to. enjoin the appellants, from executing, on them. The evidence shows, (1) that neither of the appellees had been summoned or notified of the pendency of the suits until after the judgments had been entered, and that neither of them had prior to that time appeared in proper person before the magistrate, (2) that no one “confessed judgment” before the magistrate against the appellees in any one of the suits, and (3) that no officer of the building association made oath as to the amount due on the notes at or prior to the time the judgments were entered.

The judgments rendered against the defendants were in personam, and the magistrate was clearly without jurisdiction to render them unless he had acquired, as a result of process or voluntary appearance, jurisdiction of their persons. Wilmer v. Epstein, 116 Md. 143 ; Fahey v. Mottu, 67 Md. 250 ; Clark v. Bryan, 16 Md. 171 ; Koechlept v. Hook, 10 Md. 173 . And judgments, rendered without his having acquired such jurisdiction were coram non judice, null and void. Hot only does the magistrate’s docket fail to show that the defendants were summoned, hut it affirmatively appears without