Piedmont-Mt. Airy Guano Co. v. Merritt

Urner, J., delivered the opinion of the Court. A judgment by default, at the suit of the appellant, was entered against the appellee and his son, who has since died. The son was a resident of Baltimore City, while the father resided in Baltimore County. A motion was filed by the appellee to strike out the judgment against him on the ground that he had not been summoned.

The appeal is froin an order granting the motion and giving the appellee an opportunity to make defense on the merits. The sheriff’s return on the writ of summons issued in the case was: “Summoned ambo and copy of nmr. and notice to plead left with each defendant.” The deputy sheriff, in whose hands the writ was placed for service, testified that he summoned the appellee’s son and codefendant, at the address of the latter noted on the writ, and made an engagement to return on the following Friday evening in expectation of then finding the appellee at his son’s home, and that, having returned there at the appointed time, he served the writ upon the appellee in person and left with him a copy of the declaration and notice to plead. The appellee denied in his testimony that the writ was ever served upon him, or that he was at his son’s hotae at the time mentioned by the deputy sheriff. It was stated by the deputy that the service on the appellee, whom he had never seen previously, was made about 5.30' p. m., which was after dark, on February 5th, 1926, in the vestibule of the house in which the eodefendaait lived, and from the officer’s observation of the man who came to the door, and upon whom he served the writ, in the light ²²⁸ afforded by a small electric lamp* on the ceiling of the hallway, he identified him, but not with absolute certainty, as the person whom he recognized as the appellee at the hearing.

It was testified by the appellee that he never went to his son’s home except in the morning and about eight, nine, or ten o’elo'ck at night. His son’s widow also testified that the appellee never visited them as early in the evening as the hour mentioned by the deputy as the time of service of the process. The same witness further stated that she found on the chifferobe in her bed room the two copies of the declaration and notice to plead, intended foir the appellee and her husband, that she did not see them afterwards, and that she thought her husband put them in his pocket. The copy marked for the appellee’s use was handed