Norris v. Ahles

Boyd, C. J., delivered the opinion of the Court. This is an appeal from an order rescinding a decree dismissing the bill of complaint filed by the appellees against ⁶⁴ the appellant, and reinstating the cause. The defendant (appellant), having filed his answer to the bill of complaint on February 1st, 1910, directed the clerk on February 16th, to enter a “rule further proceedings” on the plaintiffs, and the plaintiffs having failed to file a replication to the answer within ten days after notice of the rule, the Cotirt on February 28th dismissed the bill and required them to pay the costs. Ro opinion was filed giving the reasons for rescinding the decree, but the Court might well have relied on the fact, as appears by the dates in the record, that the defendant prematurely entered the rule further proceedings.

Section 161 of Article 16 of the Code, after requiring a general replication to be filed within fifteen days after an answer is filed (excepting under certain circumstances not applicable to this case) provides that: “If the plaintiff shall omit or refuse to file such replication within fifteen days after answer filed, the defendant shall be entitled to a rule further proceedings within ten days after notice of such rule; and upon failure to comply with such rule, the defendant shall be entitled to have the bill dismissed”. It may be remarked in passing that while failure to comply with the rule may entitle the defendant to have the bill dismissed, that does not deprive the Court of the power to reinstate it, if satisfactory reasons be shown. As the answer was filed on February 1st, the plaintiffs had the whole of February 16th on which to file a replication, as that -was“Within fifteen days after answer filed”. It is true that the record shows that the rule was not served until the 17th, but as the defendant was only entitled to a rule further proceedings, “if the plaintiff shall omit or refuse to file such replication within fifteen days after answer filed”, he had no more right to enter the rule on the 16th than he would have had to enter it on any previous day between the 1st and 16th.

The plaintiffs would have had until February 27th, inclusive, if the rule had been laid and served on the 17th, and the decree of dismissal was obtained on February 28th. If a plaintiff is to be held to such strict ⁶⁵ account as to'make him liable to have his bill dismissed for one day’s default under our equity practice, a defendant should at least be held to the strict letter of the statute, and not be permitted to commence the proceedings, upon which he bases the default, until he is entitled to do so by the statute. The learned Judge might, therefore, have properly rescinded the order because the foundation for the default was based on the premature action of the defendant, but, regardless of that, we have no doubt of his power to grant the order. The application to rescind the decree was filed on March ■5th, 1910—just five days after it was passed, and, therefore, before it was enrolled, as a decree does not become enrolled until the expiration of thirty days from its date, “the day of the date inclusive”, section 177 of Article 16.

As is said in Miller’s Eq. Proc. 355: “Before a decree is enrolled it is entirely within the province of the Court to revise it, the decree being subject to the control of the Court until enrollment. It may be altered, revised or entirely revoked upon application to the Court by petition”. Even at law judgments for defaults are for the most part subject to the control of the Court during the term at which they are rendered, or before they become enrolled.

We say “foithe most part” as there may be some defaults, such as those provided for by the “Practice Acts”, which would not be, and1, the ease of Heinekamp v. Beaty, 74 Md. 388 , shows how far this Court has felt justified in g’oing to prevent the enforcement of a default. In that case a “rule security for costs’1’ was laid in September, 1889, and had not been complied with on September 30th, 1890, when the defendants moved for a judgment of non pros., but this Court sustained the action of the lower Court, which permitted the plaintiff to comply with the rule after the motion for non pros, had been made, but before it was acted on by the Court—although that statute provided that “the plaintiff shall have until the second day of the next term to comply therewith, and on his failure to do so he shall be non-suited”. In the absence ⁶⁶ of some definite rules which prevent it, Courts of law permit general replications or such pleadings as will not delay the business of the Court to be filed at the call of the docket, •in order to prevent a non pros. 2 Poe■ on PI. and Pr. 235. When, therefore, a bill in equity is dismissed for default in not filing a replication—especially one which had existed for such a short time as that' in. this case—it would be strange if the Chancellor wks deprived of the discretion of rescinding the decree before its enrollment, if he became satisfied that justice required it.

A defendant cannot ordinarily be