Powhatan Steamboat Co. v. Potomac Steamboat Co.

Bartol, C. J., delivered the opinion of the Court. These appeals were taken, one of them from the judgment of condemnation, entered in favor of the appellees, at the January Term, 1870; and the other from the order of the Superior Court, passed on the 6th day of February, 1871, overruling and refusing the motion of the appellant, Thomas Clyde, to strike out and set aside the judgment oí' condemnation. The appeals were taken on the 7th day of February, 1871. First.

The appeal from the judgment was not taken within the time prescribed by law. Formerly three years were allowed. Code, Art. 5, sec. 7; Mears vs. Adreon, 31 Md., 229 . But by the Rules and Regulations respecting appeals, made and prescribed under and by authority of the Constitution, Article 4, section 18, the time was limited to nine months from the date of the judgment. 29 Md., 1 , (Rule 2d.) These rules took effect and were in force from the first day of January, 1870, 29 Md., 8 , (Rule 21,) and are applicable to this ease, the judgment of condemnation having been entered after that day.

The 20th section, Article 5, of the Code, which enlarges the time for an appeal, in cases where fraud or mistake is alleged, applies only to orders and decrees passed by Courts of Chancery. See 29 Md., 4, (Rule 9.) ²⁴⁴ The first appeal therefore, that of the “Powhatan Steamboat Co.,” Garnishee, taken from the judgment of condemnation must be dismissed, as not taken in time. Second. In support of the motion of Thomas Clyde to set aside the judgment of condemnation, the following reasons were assigned: First.

Because they were obtained by fraud and surprise practised upon this defendant by the plaintiffs, as set forth in the affidavit herewith filed. Second. Because the papers filed as the cause of action, shew no indebtedness by this defendant to the plaintiffs. Third.

Because the pretended agreement, filed as the cause of action, is not stamped. Fourth. Because it is nowhere alleged in the proceedings that the Potomac Steamboat Company is a corporation, and a private partnership cannot maintain a suit, except in the ■names of the individual partners. It is objected by the appellees that this motion was made too late; but there was no unreasonable delay or laches on the part of Thomas Clyde in filing the motion.

It appears that.he sought relief as soon as he had any knowledge of the proceedings. He was an absentee, and had no actual notice of the attachment until his property was advertised for sale by the sheriff under the writ oí fieri facias. In disposing of the motion, we will consider the several reasons assigned, inverting their order. By the Act of 1868, ch. 471, section 215, it is provided that “ it shall be sufficient in any suit, by or against a joint stock company, or association to describe it, by the name or title by which it is commonly known, or under which its business is transacted.” This provision