Taylor v. Welslager

Briscoe, J., delivered the opinion of the Court. The questions in this case arise upon a motion by the appellee, Marion R. Welslager, a married woman, to strike out a judgment rendered against her, in favor of the appellant, in the Superior Court of Baltimore. The judgment ⁴¹⁰ was rendered against James T. Welslager and Marion R., his wife, on the 30th of December, 1896, by default for want o.f a plea and affidavit of defense and on the same day was extended for the sum of $201.23. The motion for for striking out the judgment was filed on the 31st of July, 1897, and the reasons relied upon and stated by the appellee are as follows : First, because of the fraud, surprise, deceit and irregularity in obtaining the same.

Second, because the sheriff first having summoned her, returned in a few minutes and said that he had summoned the wrong party, and that she would not have to pay any attention to it; that he had made a mistake and would have to go and find the right party. Third, because by the deceit and surprise, this defendant had no opportunity to defend against the said judgment, although she had a meritorious defense. Fourth, because by the deceit, surprise and irregularity of the sheriff, this defendant was returned summoned,when in fact she was led to believe by the sheriff that a mistake had been made in summoning her, and she was not the person intended. Fifth, because the appearance of Thomas C. Weeks, Esq., was entered without any authority from her, and without being employed by her.

Sixth, because the said judgment was rendered against this said defendant, Marion R. Welslager, upon a promissory note, purporting to be signed by this defendant jointly with her husband, the said James T. Welslager, but which in fact was never signed by her, or authorized by her to be signed, but her signature thereto was a forgery. Seventh, because the paper purporting to be the joint note of Marion R. Welslager and James T. Welslager, her husband, to the order of said James T. Welslager, the husband, filed as the cause of action, is void as not being such a joint contract as comes within the terms of the statute authorizing a married woman to make a contract jointly with her husband. ⁴¹¹ On the 4th of March, 1899, the judgment was stricken out against the appellee, Marion R. Welslager, and it is from this order, that an appeal has been taken. The suit was instituted on the 26th of November, 1896, by the plaintiff, as endorsee, against the defendants, as joint makers, of the following promissory note: Baltimore, Nov. 13, 1896. . $200.00. Ten days after date, we promise to pay to the order of James T. Welslager, two hundred dollars at...........> value received.

No. . .. Nov. 13. Due........... James T. Welslager, Endorsed, Marion R. Welslager.

James T. Welslager, A. N. Horner. The question here is, whether this cause of action, filed with the declaration in this case, is such a joint contract, within the terms of the statute, authorizing a married woman to contract jointly with her husband. It will be seen, that the Act of i8p8, ch. 247, which repeals and re-enacts Art. 45, of the Code, and which works an entire change in the law relating to Husband and Wife, in this State, has no application and does not control the decision of this case. But by the terms of the Act of i8y2, ch. 270, (Art. 45, sec. 2, of the Code,) any married woman may be sued jointly with her husband on any contract or agreement which she may have executed jointly with her husband and may employ counsel and defend such action or suit separately or jointly with him.

Looking then to the note in question and the endorsements thereon, we can see no reason why the relief asked by the appellee should have been granted. While it is true that the note is somewhat unusual in form, but when endorsed by the payee it became a valid contract and was enforceable in the hands of the bona fide holder against the ⁴¹² makers. In Dunham v. Clogg, 30 Md. 292 , it was held, that in the absence of fraud, the maker having signed the note, leaving a blank for the name of the payee, the holder could fill the blank with his own name and endorse it in blank as'