Wagner v. Shank

Miller, J., delivered the opinion of the Court. In these seventeen cases appeals have been taken by Harrison Wagner, from the same number of decrees of the Circuit Court for Frederick County, sitting in equity, perpetually enjoining the execution of a large number of magistrates’ judgments, rendered in his favor against the several appellees. They present, as a whole, a case without precedent in judicial annals. They show the rendition of one thousand two hundred and ninety-six magistrates’ judgments, amounting in the aggregate, to one hundred, and twenty-seven thousand, eight hundred and thirty-six dollars debt, and two thousand three hundred and forty-eight dollars and ten cents costs, in favor of the appellant.

They were all rendered by John A. Wilson and John H. Loche, two justices of the peace, in Frederick County, seven hundred and ninety-one of them by the -former, and five hundred and five by the latter. Eight hundred and sixty-two are for the exact sum of ninety-eight dollars each, four hundred and thirty-two for one hundred dollars' each, and two for eighty dollars each. The hills in these cases were .filed by the twenty-seven defendants in these judgments, praying for injunctions to restrain the enforcement of them, and that the same may he cancelled or otherwise dealt with as right and justice may require. 1st. With respect to the judgments rendered by Wilson, the bills charge, in substance, that Wagner, maliciously and wickedly designing and intending to cheat, defraud and swindle the complainants out of large amounts of money, procured these judgments to be entered up by Wilson, who was falsely and unlawfully pretending to he a justice of the peace, but who in fact, at the time, had no authority to act as such; that neither at the time of the ³¹⁶ institution of the pretended suits, nor at the time when the pretended judgments were rendered, were the complainants indebted to Wagner in any sum of money whatever, and that the same as well as any pretended claims upon which they may be founded, are wholly false, vexatious and oppressive, and without any pretence or color of right or justice; and that the complainants had no knowledge of their existence, until nearly a year after they were rendered.

Interlocutory decrees for want of answers were entered in all the cases except one, and testimony under ex parte commissions was taken by the complainants. Wagner, however, subsequently filed his answers, in which he denies all the allegations of fraud contained in the bills, avers that the several complainants were duly summoned in the cases before the magistrate, who, he insists, was duly authorized to act as such at the time, declares that the judgments are genuine, valid and effective, and admits that at the time of the filing of the bills it was his purpose and intention to enforce them. Other commissions were then issued under which testimony was taken on the part of the defendant, and in some of the cases also by the complainants. The gross iniquity of this whole transaction, manifest enough upon its face, is abundantly established by the proof.

Wilson lived in a different district of the county and at a place remote from that in which the parties sued resided, and these seven hundred and ninety-one judgments, were rendered by him on fourteen different days from the 30th of September, to the 26th of December, 1878, all of them, save sixty, in the month of October, and as many as two hundred and forty-two on one day in that month. The inference is irresistible that he merely wrote them out on his docket, without examining witnesses, and without the semblance even of an ex parte trial. The claims on which they are founded do not appear in the records, but it is impossible to conceive that ³¹⁷ Wagner could have had this number of separate bona fide claims against these parties, each for the exact sum either of $100, or of $98. It would be taxing credulity beyond all reasonable limits to ask any one to believe that such a set of claims ever grew' out of honest dealings.

But the complainants all testify that they never owed the man a cent, that they never had any business transactions with him, and some of them swear that they never knew that such a person existed. In one case the bill is filed by administrators, who would not be competent to testify, but the facts, that the intestate never had any dealings with Wagner, and was never indebted to him, are sufficiently established by other competent witnesses. He did not come forward to testify in his own behalf, in any of the cases. In one (that of Otho A. Shank and wife,) he was summoned by tbe complainants, but be refused to be sworn until the interrogatories were written out and filed with the commissioner, and a copy thereof furnished to him.

Being gratified in this to the extent of having the interrogatories filed, he was examined, and when asked what was the foundation of the twenty judgments, of $100 each against these parties, all he could say was, that Shank and wife, closed up a drain in the main street, in the town of Woodsboro’, by which act he considered his property there was injured to the extent of $2000, and that he divided this up into twenty suits, in order to bring them before a magistrate, so as to end the matter in a short time. He could not tell however, when the drain was thus obstructed, and Shank swears that neither he nor his wife, ever at any time placed any obstructions therein. In regard to this testimony it is enough to say that it clearly shows there was no real foundation for the judgments in this particular case. In none of the others was any attempt made to contradict the positive and direct testimony of the complainants to the same effect.

But the appellant by his counsel insists, that all this proof is ³¹⁸ immaterial, that the complainants were duly summoned and should have defended the suits before the magistrate, that not having done so, and not having appealed therefrom, the judgments. are now conclusive, and the rule is inflexible, that in such a case a Court of equity has no power to interfere. By taking this defence, he admits, in eflect, that he is content'to enrich himself, and inflict heavy loss, if not ruin, upon these parties, by holding on to and enforcing judgments, which are conclusively proved to he utterly unjust, and which in fact, represent no real debts whatever. But assuming that these cases, extraordinary and unprecedented as they are, cannot be treated as constituting an exception to the general rule, there is, fortunately for the ends of justice, proof enough in the records, to exempt them from its operation. The rule is that where a party fails to avail himself of his proper defence at law, and is not prevented from so doing by fraud or accident, or the acts of the opposite party, unmixed with any negligence or fault on his part, equity will not interfere.

Gott & Wilson vs. Carr, 6 G. & J., 312 ; Kirby vs. Pascault, 52 Md., 536 . But this rule in terms recognizes the doctrine, which is equally well settled, that where a party is not in fault by failing to use reasonable diligence, and is prevented from defending the action at law, by fraud or accident, or the acts of the opposite party, equity will lend’ its aid and give relief; and the proof shows that the complainants in all the cases involving these Wilson judgments, except two, are entitled to relief upon this ground alone. When these complainants were summoned they promptly employed counsel to attend to the suits. Mr. Nelson, the counsel so employed, testifies that shortly after his employment he went to Wilson's residence, and after some conversation with him, Wilson concluded to dismiss the cases, and then signed, sealed and delivered to witness a paper in which he states that “ Having become perfectly satisfied that the ³¹⁹ suits brought before me by Harrison Wagner against the following persons, to wit: ” (Then follow the names of all these complainants except Otho A. Shank and wife and John M. Holbrunner and wife, with the number of cases against each,) “ are vexatious and without any color of claim or right, the same are hereby dismissed.” He then took this paper, gave it to one of his clients and informed all of them that the suits had been dismissed.

Having obtained this order of dismissal he supposed the matter was finally disposed of and gave himself no further concern about it. But shortly afterwards, without any notice to Mr. Kelson, or to either of the complainants, Wilson proceeded to enter up the judgments on his docket. A case of grosser misconduct on the part of a magistrate in the discharge of his judicial duties can hardly be imagined. But when this is followed by the fact that Wagner never issued execution upon a single one of these judgments, amounting in the aggregate to more than $75,000, until long after the time for appeal had elapsed, and by the further fact that neither the defendants in them, nor their counsel, had any knowledge of such judgments until nearly a year after they had been rendered, the inference maybe justly drawn that Wagner and Wilson acted in collusion for the fraudulent purpose of having these judgments rendered secretly, and their existence concealed in order to prevent any appeals therefrom.

These facts alone make a plain case for relief in equity. In the two cases of Shank and wife, and Holbrunner and wife, there were twenty judgments, amounting to $2000 against the former, and ten, amounting to $1000 against the latter. Shank and Holbrunner both testify in clear and positive terms, not only that they were never indebted to Wagner, but that neither they nor their wives were ever summoned to appear before Wilson in these suits. Under the peculiar circumstances of these cases we are convinced that their testimony on this point must be taken as true. ³²⁰ notwithstanding the testimony of Grimes to the contrary and his returns to the writs.

It appears that Grimes was the constable to whom a very large number of the summonses in these cases were entrusted for the purpose of being served, and it is not strange that he should have been mistaken as to service in these two instances. But as to the defendants the case was quite different. The suits were for large amounts, unusual in number, and for these reasons, if for none other, extraordinary in character. If the defendants had been summoned in such cases the fact was one most likely to be impressed on their memories, and it would be strange if they had neglected to attend to them.

The very fact that they did not do so and did not employ counsel as did their neighbors, who had been summoned in precisely similar cases, is a circumstance which tends strongly to corroborate' their testimony. Finding then that these parties were never summoned it is hardly necessary to say that the judgments against them are absolutely void. These views dispose of all the judgments rendered by Wilson, and dispense with the necessity of deciding the further question whether his term of office had then expired, so that he was not authorized to act as a justice of the peace. 2nd. As to the judgments rendered by Locke, the bills contain similar averments of fraud, and the answers the same general denials.

There is here, however, no question as to the facts that Locke was, at the time, duly commissioned, and had duly qualified by taking the requisite oath at the proper time. The case of greatest importance is that of Adams Express Company, and a most remarkable one it is. In the first place, Wagner, on the 31st of March, 1877, instituted one hundred and nineteen suits against this company before this magistrate for $100 each. On the 14th of April, the trial day, Mr. Nelson, as counsel, and an agent of the company appeared at the magistrate’s office ³²¹ to contest the cases, hut found that Wagner had been there the day before and withdrawn them, saying (as Locke testifies) that he was not able to attend to them at that time.

On the 21st of April, seven days after these suits had been thus withdrawn, he instituted five hundred other suits, each for the sum of $98, and on the 13th of October following, judgments were entered up in each of these cases for $98 debt, and $2.50 costs, making in the aggregate $49,000 debt, and $12.50 costs. The causes of action are all of the same character and in the same words, viz., “ for the fulfilment in payment of the first part of your indebtedness $98,” and so on for the following and consecutive parts up to five hundred. The magistrate himself proves that there were no affidavits to these claims, that Wagner never swore to their correctness, that no witnesses were examined in reference to them, that neither party was present in person or by counsel when the judgments were rendered, and that he entered them all up on the same day. It is hardly possible to believe that one who had held a commission as justice of the peace for more than thirteen years, could be so ignorant as to do such an act.

The law makes the path of his duty exceedingly plain. When the summons is returned “summoned,” and the defendant fails to appear, the justice must fix a day of trial within a prescribed time, and on the day so fixed he may proceed to try the case ex parte. Either party may ask a postponement, and he is required to postpone the trial to another day, if he is satisfied by the oath of the party making the application, or otherwise, that a postponement is necessary to a fair trial of the case. If either party fails to appear on the day to which the case is thus postponed, he may proceed to try the case ex parte.

And in all cases tried before .him he may enter judgment against either plaintiff or defendant for such sum as may appear to him just and right. Code, Art. 51, secs. 19, 23, 24, 30. All these provisions of the Code contemplate, and require a trial, and ³²² in an ex parte trial where the plaintiff claims a judgment,, especially in cases like the present, upon mere open accounts, not even supported by his affidavits, he must prove his claim either by his own testimony or that of other witnesses, before the magistrate can rightfully give judgment in his favor. If these suits had been brought, as they might have been, in the Circuit Court, and the summonses-had been properly served, interlocutory judgments for want of an appearance would have been entered, but before they could have been extended and made final, the plaintiff' would have been compelled to prove his accounts by competent testimony.

Judgments entered up as these were are simply shams, mere attempts to create debts by the-forms of law where none were ever proved to exist, or where none in fact ever existed. What would be the effect of a