Scheidt v. Schermerhorn

Stockbridge, J., delivered the opinion of the Court. Four bills of exception appear in the record in this ease, though but one of them is at all vital to the decision of the case. The first and third bills were taken to the rulings of the lower Court upon evidence, which rulings were correct. The case was heard on a motion to strike out a. judgment, made after the term at which, the judgment had been entered.

The judgment was founded on an attachment by original process-, issued upon the ground that Charles B. and Kitty W. Jester had disposed of, or was about to dispose of their property for the purpose of defrauding their creditors. In order that the motion should prevail it was incumbent upon the party making it to show that the judgment had been rendered as the result of fraud, deceit, surprise or mistake, and the burden of establishing this rested with the p-arty making the application. In both of the exceptions mentioned the plain purpo-se was to elicit evidence tending to- show that the person who- had procured the attachment to issue, had a reasonable ground for making the affidavit upon which the process by Way of attach-men was founded. It, therefore, went to the bona fides of the original plaintiff, and since it involved a question of fraud, o-pened the door for a wider scope to the examination of the witnesses than would otherwise have been the case.

In the second exception Charles B. Jester, one of the original defendants, was under examination, and had testified to the existence of four mortgages, aggregating in the neighborhood of $5,000,—upon property, the value of which was ⁴⁷⁰ testified by him as being $20,000. He was then asked, why he had four mortgages on the property, and “Don’t you think it would be better financing to have just one mortgage?” This question was in no way material to the issue involved; at best it invited merely the expression of the witness’s opinion upon a question of financing, and should properly have been excluded, but it is impossible to see, from an examination of the record, any injury which resulted to the defendant from the overruling of this objection, and since error alone without injury does not constitute ground for reversal, the judgment as rendered will not be disturbed, unless it shall appear that there was other prejudicial error. The sole question, therefore, at all important to the determination of this case, grows out of the ruling of the Court and its action in refusing to strike out the judgment. This is raised by the fourth bill of exceptions.

There is no controversy as to the fact that the application so to strike out was not made until the term following that at which the judgment was rendered and “It is well settled that when a motion is made to set aside a judgment after the term at which it was rendered, the proof of fraud, deceit, surprise or mistake must be clear and satisfactory, and it must appear that the party making the application has acted in good faith, and with ordinary diligence,” and that he has a meritorious defense. II Poe's Pleading & Practice (4th Ed.), sec. 392; Abell v. Simon, 49 Md. 318 ; Smith v. Black, 51 Md. 247 ; Geesey v. Stouch, 94 Md. 75 ; Girard F. & M. Ins. Co. v. Bankard, 107 Md. 538 ; Jones v. State, 118 Md. 69 . This is the rule of law applicable to applications such as the present.

The question of whether there was proof of fraud, deceit, surprise or mistake was a question of fact to be found as such, and where the trial Court, after hearing the evidence upon the motion, found adversely to the original defendants on the question of fact, such finding is not to be lightly disturbed. ⁴⁷¹ In the short note cases both of