Plummer v. Rosenthal

Johnson, J., delivered the opinion of the Court. This is an appeal by Ralph G. Plummer, one of the defendants below, from a decree of the Circuit Court No. 2, of Baltimore City, enjoining him from enforcing collection of a judgment obtained in the People’s Court of Baltimore City against the appellee, Earl Rosenthal, and directing that the judgment be stricken from the record and the case reopened for trial upon its merits. The judgment was rendered on June 10th, 1938, by default, in the sum of $93.49, for damages alleged sustained on October 5th, 1937, as a result of a collision between motor vehicles owned by appellant and appellee. The bill of complaint was filed by appellee against appellant, the chief constable of the People’s Court of Balti ¹⁵¹ more City, and the Motor Vehicle Commissioner of the State of Maryland, after steps had been taken under Code, art. 56, sec. 187B, as added by Acts 1931, ch. 498, known as Financial Responsibility Act, to revoke appellee’s license to operate a motor vehicle, as well as his motor vehicle registration.

In his bill of complaint, Rosenthal alleged that he had never received a summons to appear in the People’s Court of Baltimore City to defend the suit, of which he had no knowledge until the time within which he could take an appeal had expired, and the first information he had of it was gained when he received a notice from the Motor Vehicle Commissioner that his permit to drive a motor vehicle and his motor vehicle registration were to be suspended because the judgment had not been satisfied. The decree appealed from was based upon a finding that Rosenthal had not in fact been summoned by the constable. At the trial only three witnesses were produced, viz: the plaintiff, Rosenthal, Charles H. Bokemyer, a constable in the People’s Court, and Irvin Rosenthal, plaintiff’s brother. Rosenthal, who is a law school graduate, testified that he had never received any summons or notice of any kind to defend the suit in the People’s Court, and the first knowledge he had obtained about the suit was when he received a letter from Plummer’s counsel, requesting settlement of the judgment, after the time for an appeal had elapsed.

In that letter he was informed that his driver’s license and his motor vehicle registration would be revoked unless the judgment was settled. Bokemyer, the constable, was then produced by appellant and shown a writ of summons in which he had made a return of “Summoned in person.” He identified the writ arid stated that he had served it upon Rosenthal in front of a garage in the 800 block of East Lexington Street on May 18th, 1938; that he had not previously known Earl Rosenthal, but the party he summoned answered to Rosenthal’s name; that he had heard nothing ¹⁵² further about the matter until two or three months before he was asked to testify in the case, and was then told he had not summoned the right party. The writ of summons and return of Bokemyer thereon were offered in evidence. Earl Rosenthal was called on re-direct examination and testified that on May 18th, 1938, he was connected with a garage in the 800 block of East Lexington Street and the garage was being managed by his brother, Irvin, who resembled him very closely, so much so in fact that on many occasions their identities had been mistaken by people who had seen them three or four times; that never in his life had he seen the constable before the date of the hearing, although he had in the past known other constables and had been summoned by them.

At this point the chancellor requested that the witness’ brother be brought in and the constable remain pending his arrival. The brother was produced and testified that he was' engaged in the garage business at 810 East Lexington Street on May 18th, 1938. Bokemyer was pointed out to him and he was asked whether he had on that date been served by him with any writ of summons for the People’s Court and replied that he did not remember. He stated further that if he had received any summons he would have turned it over to his brother, and further that he did not recall ever having previously seen Constable Bokemyer.

The constable was then recalled and interrogated by the chancellor as follows: Q. “You saw the witness who