Newark Trust Co. v. Trimble

Bruñe, C. J., delivered the opinion of the Court. Newark Trust Company, the appellant, obtained a judgment by confession in the Circuit Court for Cecil County on August 22, 1956, against the appellees, Samuel B. Trimble and Gladys Trimble, his wife. Judgment was entered by the Clerk and summons was duly served on the appellees on August 24, 1956, both in accordance with what is now Rule 645 of the Maryland Rules (then G.R.P.P., Part Three, II, Rule 1). The judgment was based upon a confessed judgment note purportedly executed by the defendants-appellees, dated April 27, 1956, payable to the order of one Richard Smith at the Newark Trust Company, in monthly instalments beginning one month after date, with a provision for acceleration of the unpaid balance upon default in the payment of any instalment.

The note was endorsed, without recourse, by Richard Smith to the Newark Trust Company. It was in printed form, and the signatures of the makers were witnessed by Smith. The amount of the judgment was the face amount of the note, $708.00, plus interest and attorney’s fee. No pleading was filed by the defendants within thirty days after service, and on January 25, 1957, a fi. fa. was issued on the judgment.

As a result, property owned by the defendants as tenants by the entireties was advertised for sale on March 9, 1957. On March 1, 1957, the defendant, Gladys Trimble, acting on behalf of both defendants, signed and filed, through counsel, a motion to strike out the judgment and a request for immediate hearing, based upon a claim that the signatures ⁵⁰⁴ to the notes were forgeries and a further claim that the defendant Samuel B. Trimble was then in an insane asylum and had been insane at the time of the making of the note. The matter was set for hearing on March 7, 1957. On that date counsel for the plaintiff asked for a postponement, which was granted, and at the same time the Circuit Court stayed the sale pending determination of the motion to strike out the judgment.

The matter came on for hearing on June 7, 1957, and further hearings were held on June 13 and June 19, 1957. On the latter date the Circuit Court entered an order striking out the judgment, preserving all liens and allowing the defendants fifteen days to plead. On July 2nd they pleaded forgery and the general issue. (There was no plea of insanity.) On July 16, 1957, the plaintiff appealed from the order of June 19th.

The record contains no transcript of proceedings at the hearings. We were informed by the appellant’s counsel at the argument in this Court that there was no court stenographer available at the time and hence there is no stenographic record. The Judge who heard the matter in the Circuit Court retired from office within a day or two after the hearing of June 19th, and no statement or certificate of what transpired at the hearing was presented or requested. The appellant asks us to reverse the order striking out the judgment.

It urges that the appellees, who had due notice of judgment and full opportunity to contest it are now es-topped from attacking it except for fraud, mistake, duress, surprise or coercion in the obtention of the judgment; and it further urges that, even if the signatures to the note were forgeries, this alone would not supply the showing necessary to set aside the judgment. The appellees did not appear in this Court and filed no brief. Our present Rule 645 with regard to the entry of a judgment by confession and its requirement for the service of summons on the defendant and its allowance of thirty days within which to move to strike out such a judgment are the outgrowth of the hardships upon defendants in such cases, which sometimes resulted previously from lack of notice and ⁵⁰⁵ the consequent lack of an opportunity to interpose defenses before such a judgment became enrolled. It is true, as a general proposition, that one who has a full and free opportunity to be heard, but who elects to stand mute and so to permit judgment to go against him, is bound.

Moss v. Annapolis Savings Institution, 177 Md. 135 , 8 A. 2d 881 . Prior cases have established the rule that “after a judgment is enrolled it is no longer within the breast of the court and cannot be properly stricken out, except upon allegation and proof of fraud, surprise, deceit or irregularity, and unless it appears that the party has acted in good faith and with ordinary