Legum v. Farmers National Bank

Marbury, J., delivered the opinion of the Court. A judgment debtor appeals from an order of court striking out an order of satisfaction of a judgment against him. The order of satisfaction was filed on April 22, 1941, and the petition to strike was filed on July 18, 1941, which was within the term of court in which the order was filed. A combined demurrer and answer was filed to the petition to strike out, testimony was taken, and on August 7, 1941, the court passed the order from which this appeal was taken.

A motion is made by the appellee to dismiss the appeal on the ground that the lower court was acting within its discretion in striking out an order of satisfaction where the motion to strike was filed during the term and therefore no appeal lies. - The appellee’s theory is that the rule, with respect to striking out orders of satisfaction, is the same as that with respect to striking out judgments. The situation in the two cases, however, is entirely dissimilar, and the judgment rule does not apply. ³⁵⁸ In a recent case (Silverberg v. Dearholt, 180 Md. 38 , 22 A. 2d 588 ) this court quoted with approval the statement of this rule in Poe’s Practice, Vol. II (Tiffany Edition, Par. 389), to the effect that where the motion to strike is made within the term and is granted, no appeal lies at the instance of the plaintiff because such order is not a final disposition of the case, but leaves it on the docket to be legally heard in due course, and therefore no substantial injury is done to the plaintiff. The rule is otherwise in cases where the defendant appeals from an order refusing to strike out a judgment.

In the early case of Hall v. Holmes, 30 Md. 558 , this court said: “But the case is very different where the motion to strike out the judgment is overruled by the court; for then the liability of the defendant is fixed and determined, and his right of appeal accrues, without which he would be entirely remediless. From' orders overruling motions to strike out judgments, we are clearly of opinion that appeals lie, whether the motions be made during the same term, or at a term subsequent to that at which the judgment was rendered.” See, also, Merrick v. Baltimore & Ohio Railroad Co., 33 Md. 481 ; Montgomery v. Murphy, 19 Md. 576 , 81 Am. Dec. 652 ; Powhatan Steamboat Co. v. Potomac Steamboat Co., 36 Md. 238 ; Johnson v. Lemmon, 37 Md. 336 ; and Wainwright v. Wilkinson, 62 Md. 146 . When an order of satisfaction is stricken out, the situation is similar to that in the last mentioned class of cases.

The defendant is left with a judgment against him, which may be a lien upon his property, and upon which process may issue against him. His rights have been fixed and determined so far as the lower court is concerned. If he had no right of appeal, he would be entirely without remedy. The motion to dismiss the appeal in this case will therefore be denied. ■ The testimony showed that in the early part of 1941, the appellant was in a situation where he owed approximately $60,000 to various people secured by judgments and other liens.

He was endeavoring to refinance. He ³⁵⁹ owed the appellee over $33,000 on two deeds of trust, the confessed judgment which was stricken out, two mortgages, and two notes. An arrangement was made by him to refinance, and a settlement was made on April 21. At that settlement, the appellee presented its statement of account showing separately the several obligations on which the defendant was indebted, the principal, interest and costs of each of these being totaled separately and correctly, but the grand total was shown as $33,155.06, when it should have been $33,691.06, a difference of $536.

The settlement went through on the basis of the erroneous total. This amount was given to the appellee, and in exchange it canceled all of its claims, giving, among other things, the order of satisfaction for the judgment in question. This was a confessed judgment which had been entered on April 17, 1935, for $5,000, with $500 attorney’s collection fee, interest and costs. There had been a credit of $500 on account of this judgment, leaving the balance due on it, including interest, costs and attorney’s fees, $5,232.25.

The error was discovered the following morning, and promptly reported by the appellee’s attorney to the attorney for the appellant. Meanwhile, the settlement had gone through, mortgages and conveyances had been given by the appellant, and the rights of third parties had attached. When the appellant was told about the matter, he told the attorney for the bank that if there was a mistake he would take care of it, and by his own admission he said, “I said let it stay. I will talk over the matter with you.

If it is a mistake, I will pay it.” Relying on this statement, no action was taken until July 18, 1941, when, no settlement having been made, the motion was filed. The court overruled the demurrer of the appellee, and struck out the order of satisfaction without prejudice to the mortgages and conveyances which had been made to third parties on the day of the settlement. The ground of the demurrer was that the court had no jurisdiction, as the cancellation of an instrument is a matter to be passed on in an original equity proceed ³⁶⁰ ing. This was not