Shaw v. Adams

²⁹⁵ Per Curiam. This is an appeal from an order of the Court of Common Pleas of Baltimore City vacating a judgment by default which had been entered in a tort action for want of plea. The chronology of the unusual chain of events is of significance. In May of 1968, Shaw sued the Mayor and City Council of Baltimore and one Oden, whom he mistakenly believed to be the owner of the property on which the injury was sustained.

In February, 1970, Shaw filed an amended declaration, this time joining Adams, the owner of the property, as a defendant with the City. At the same time, Shaw elected a jury trial and served interrogatories on Adams. When Adams neither responded to the declaration nor answered the interrogatories, Shaw, on 1 April 1970, moved for a judgment by default for want of plea, and, on the same day, judgment by default was entered. Also on the same day, Adams filed a general issue plea and answers to the interrogatories.

It seems to be conceded that it was impossible to determine with absolute certainty which of the papers was filed first, even though the judgment by default was entered on the docket before the plea was entered. In October of 1970, Adams moved to vacate the judgment. In March, 1971, the court granted the motion and this appeal followed. Maryland Rule 625 a provides: “For a period of thirty days after the entry of a judgment, or thereafter pursuant to motion filed within such period, the court shall have revisory power and control over such judgment.

After the expiration of such period the court shall have revisory power and control over such judgment, only in case of fraud, mistake or irregularity.” The court below, in striking the judgment by default, regarded the filing of the general issue plea and an an ²⁹⁶ swer to Shaw’s motion ne recipiatur as having the effect of a motion to vacate the judgment, and concluded that the time within which the court could exercise its revisory power was thereby extended beyond the 30 day period specified by Rule 625