Rent-A-Car Co. v. Globe & Rutgers Fire Insurance

Digges, J., delivered the opinion of the Court. The controversy between the parties to this record has been before this court on three previous occasions: 158 Md. 169 , 148 A. 252 ; 161 Md. 249 , 156 A. 847 , and 163 Md. 401 , 163 A. 702 . In each of those cases the trial was by court and jury, and in each a verdict and judgment was found and entered for the defendant, the appellee. In the first and second of those cases, on appeal, the judgment was reversed and a new trial awarded.

On the third appeal the judgment in favor of this appellee was affirmed, and a motion for reargument in this court was overruled, thereby finally disposing of the case. After the mandate of this court was received by the trial court, the appellant filed its petition in the Baltimore City Court to strike out the judgment in that court on the ground of fraud in the obtention of said judgment. The fraud complained of is alleged to be the perjury of one Judson R. Kezer, a witness who testified on behalf of the defendant (appellee) in the second and third trials of this case. There was filed with the petition an affidavit by the said Kezer made before a notary public of the State of New York, wherein the affiant swore that the testimony under oath, which he had given in the trials previously had between the parties, was “false and untrue,” and further that he made this statement of his “free will in an effort to undo the great wrong and injustice I have done.” On May 4th, 1933, the Baltimore City Court ordered that ⁴⁴⁹ the judgment in the aho-ve entitled cause be and the same is hereby stricken out and the case be and the same is hereby reinstated on the trial calendar for trial, unless cause to the contrary be shown on or before the 31st day of Hay, 1933, provided that a copy of this petition and order be served on the attorneys for the defendant on or before the 15th day of May, 1933.

The defendant filed its answer, and prayed the court, for reasons therein set forth, to rescind its nisi order of May 4th, 1933, and that the petition of the plaintiff to strike out the judgment be dismissed. After a hearing on petition and answer, the lower court, on June 10th, 1933, passed two orders in conformity with the prayers contained in the defendant’s answer. The appeal is from those orders, and presents the sole question whether the trial court, was correct in refusing to strike out the judgment made absolute on March 3rd, 1932, and affirmed by this court on January 11th, 1933. The motion made by the appellant for a roargument of the case in this court was based upon the identical facts which by this record were urged upon the trial court as requiring that the judgment be stricken out.

A sound public policy requires that there be an end of litigation between the same parties growing out of the same facts. In cases where there has been an adversary trial between the