O'CONNOR v. Moten

ADKINS, Judge. The question presented in this case is whether a motion raising a preliminary objection under former Md. Rule 323 extended the time for filing a motion to vacate a default judgment. We hold that it did. Reduced to their bare essentials, the facts may be simply stated.

On 23 . August 1982 appellee, Derrick Moten, sued appellant, Jeffrey O’Connor, and Brandywine Riding Stable, Inc., in tort. 1 After several non ests as to O’Connor, the Circuit Court for Prince George’s County authorized substituted service on him, pursuant to former Md. Rule 104. An affidavit of service was filed. O’Connor failed to plead and on 6 December 1983 judgment by default was entered against him.

On 4 January 1984 O’Connor filed a motion raising preliminary objection pursuant to former Rule 323. The motion asserted lack of personal jurisdiction because of ineffective service of process. On 21 March 1984 the circuit court (Melbourne, J.) denied the motion, but granted O’Con-nor “15 days leave to file Motion to Vacate Default Judgment.” This he did on 4 April. A month later Judge Melbourne struck the default judgment, finding that O’Con-nor’s motion presented a meritorious defense.

Moten promptly appealed to an in banc court. Md. Const. Art. 4, § 22. That court reasoned that (1) the motion raising preliminary objection did not toll the 30-day period at the expiration of which a default judgment becomes enrolled; (2) the default judgment against O’Connor had become enrolled 30 days after its entry on 6 December 1983; (3) an enrolled judgment may be stricken only on a showing of fraud, mistake, or irregularity; and (4) there was no such showing here.

It held that Judge Melbourne had erred in ⁶⁴⁷ vacating the default judgment and set aside her order of 4 May 1984. O’Connor appealed to the Court of Special Appeals. It agreed with the in banc court that the default judgment had become enrolled 30 days after its entry, despite the filing of O’Connor’s motion raising preliminary objection within that period. It dismissed the appeal.

O’Connor v. Moten, No. 767, Sept. Term, 1985 (filed February 20, 1986). We granted certiorari. 306 Md. 369 , 509 A.2d 133 (1986). As we proceed to address the issue in this case, we point out that all the significant actions of the trial court occurred before 1 July 1984—the effective date of a comprehensive revision of the Maryland Rules. Consequently, the rules that were in effect prior to that date govern this case.

Moten’s position is straightforward. At least since Himes v. Day, 254 Md. 197 , 254 A.2d 181 (1969), a default judgment as to liability, such as the one entered in this case, had been appealable from date of entry. 2 “For a period of 30 days after” that entry, “or thereafter, pursuant to motion filed within such period, the court” could revise (strike) the default judgment, but after the expiration of that period, if no motion had been filed within it, the judgment became “enrolled” and then could be revised only on a showing of fraud, mistake, or irregularity. Former Md. ⁶⁴⁸ Rule 625a. Since, continues Moten, no motion to revise or strike the default judgment was filed within 30 days from 6 December 1983, and no appeal was taken from the default judgment entered on that date, it became unreviewable except for fraud, mistake, or irregularity—circumstances not asserted here.

O’Connor’s motion to strike the default judgment, which motion was not filed until 4 April 1984, did not raise those issues. As a consequence, Moten concludes, the default judgment is unreviewable. In view of the unusual facts of this case, we see the matter otherwise. Former Md. Rule 323b. mandated that a motion raising lack of personal jurisdiction, which is what O’Connor initially filed, “shall be filed before any other pleading is filed, and unless so filed, the defense shall be deemed to have been waived.” O’Connor complied with this rule.

Had he done otherwise, for example, by joining with his preliminary objection a motion to strike the default judgment because of the existence of meritorious defenses, he would have waived his objection to personal jurisdiction. Eastham v. Young, 250 Md. 516 , 243 A.2d 559 (1968). See also Harvey v. Slacum, 181 Md. 206 , 29 A.2d 276 (1942) (when general issue plea filed after objection to personal jurisdiction made, the objection is waived). Moreover, O’Connor’s preliminary objection on the ground of personal jurisdiction was, in effect, a motion to strike the default judgment.

A default judgment cannot properly be entered absent personal jurisdiction over the defendant. Fick v. Towers, 152 Md. 335 , 136 A. 648 (1927); Kraft v. Sussex Constr. Corp., 35 Md.App. 309 , 370 A.2d 570 (1977). O’Connor, then,otimely filed what amounted to a motion to strike the default judgment, and he asserted his personal jurisdiction objection before any other basis for attacking the judgment, as Rule 323 required him to do.

Rule 323c. instructed (subject to an exception not here pertinent) that “the filing of a motion under this Rule shall extend the time for pleading pursuant to section a of Rule 309____” The latter rule allowed a 15 day pleading extension after disposi ⁶⁴⁹ tion of “a pleading requiring a ruling by the court____” O’Connor’s motion raising preliminary