Smith v. Black

Miller, J., delived the opinion of the Court. This appeal is from an order striking out a judgment after the lapse of the term at which it was rendered. The power of Courts of law to set aside judgments after the term has elapsed, for fraud, surprise, or irregularity in obtaining them is well settled, and the principles which must govern action in such cases have been announced in repeated decisions of this Court. The party seeking such relief must establish his right to it by clear and convincing proof, and he must appear to have acted in good faith and with ordinary diligence.

Sarlouis vs. Firemen’s Ins. Co., 45 Md., 245 ; Craig vs. Wroth, 47 Md., 283 . In the present case we were greatly impressed with the able and eloquent argument of the appellee’s counsel in support of the order appealed from, but after a calm consideration and careful examination of the testimony in the record, we are convinced the judgment ought not to be disturbed. It was regularly entered, and there is no pretence that any fraud was practiced by the plaintiff or his counsel to obtain it.

The sole ground on which relief is asked is that the rendition of the judgment was a surprise to the defendant, who had a good defence to the action. In disposing of this question, we shall consider briefly the facts disclosed by the record, and the affidavits filed in support of the defendant’s motion. The suit was instituted on the 6th of December, 1871, by the plaintiff as payee against the defendant as maker of three promissory notes for $250 each. The defendant was duly summoned to the December Term of that year, and appeared by John C. Motter, Esq., his attorney.

The declaration was filed on the 1st of January, 1872, and on the 30th of the same month, Mr. Motter filed the usual ²⁵² short pleas of non assumpsit in the form prescribed by the Code. Now it appears by the defendant’s affidavit that his defence was that these notes were without consideration, and it is apparent from the facts which he states in reference to the obtaining of the notes, that he knew of this defence when he was summoned, and we infer from what is said in the affidavit of Mr. Motter, that he also knew what the defence was at the time the pleas were filed. The case was then continued from term to term until the September Term, 1872, when it stood regularly upon the trial docket. Some weeks before the commencement of this term the defendant requested William P. Maulsby, Jr., Esq., to assist in the trial of a case which he then had pending in Court, and Mr. Maulsby replied that he would.

This was all that passed between them, and Mr. Maulsby never at any time prior to the judgment had any further conversation with, or received any information from the defendant in regard to the case. At the call of the trial docket at the commencement of the term, Mr. Maulsby entered his appearance with Mr. Motter, as a matter of course, but did not consult or inform Mr. Motter thereof. It has been argued,that Mr. Maulsby having been engaged merely to assist in the trial of the case, had no authority to enter his appearance when the docket was called. But in our judgment a request to assist at the trial and his agreement to do so, was a full justification for this action by Mr. Maulsby.

We have no doubt that by such employment the relation of client and attorney as to this case was fully established between them, and authorized the latter to appear as attorney in the case, and have his name so entered on the docket. After the term had continued more than a month, a case was taken up, the trial of which both Mr. Maulsby and Mr. Motter state, they expected would consume the remainder of the time which the Court had signified would be devoted to the trial of cases at that term, and such ²⁵³ was the general understanding of the bar. That case, however, was terminated abruptly, and the Court proceeded with the call of the docket, and this case was reached. The plaintiff was ready, and pressed for a trial as he had the undoubted right to do.

Mr. Motter was not in Court, and Mr. Maulsby, not having, as he states, any legal ground for a continuance was constrained to go to trial; and, being ignorant of the facts on which a defence was to be made, and having neither client or witnesses at hand, and not having the faintest idea of any desire or intent on the part of the defendant, to have the case removed, he was obliged to yield “the judgment on proof by the plaintiff of the defendant’s signatures to the notes, and the judgment was accordingly entered for the plaintiff for the amount of the notes and interest. This was done on the 23rd of October, more than a month