Weinreich, Adm'x v. Walker

Hammond, J., delivered the majority opinion of the Court. Horney, J., dissents. Dissenting opinion at p. 302, injra. For the appellant, the plaintiff below, to prevail we must find that Judge Carter erred in striking an enrolled judgment in a tort case, on the ground that there had not been valid service of process on the defendant.

If he did err, the appellee, the defendant below, and his insurance carrier must pay the judgment; if his action was proper, the appellant will lose her judgment and have only a claim. On April 9, 1962, William Jamison was crossing the street at an intersection in Baltimore when he was struck by an automobile driven by Robert Walker, the appellee. Jamison died soon after the accident, as a result thereof, and his daughter, the appellant, was appointed administratrix of his estate. She employed a lawyer to recover damages for her father’s expenses and suffering resulting from the accident.

Walker was insured with the Southern General Insurance Company which had issued to him its policy under the financial responsibility provisions of the law — Code (1957 and 1964 Cum. Supp.), Art. 66j4, Sec. 131 (a) (6) (F): “* * * the liability of the insurance carrier shall become absolute whenever loss or damage included in such policy occurs * * and had filed with the Department of Motor Vehicles an S. R. 22 form certifying that such insurance was in effect to cover Walker. 1 The claimant’s lawyer told Walker that he represented the ²⁹⁴ claimant and ascertained from him the identity of his insurance company. The lawyer notified the adjuster for the insurance company that he represented the claimant and there followed various letters and telephone calls between them. No offer of settlement was made, and the appellant filed suit against Walker on November 7, 1962.

Walker had changed his residence shortly before that date and the sheriff did not effect service, twice filing a return of non-est. Md. Rule 116 a 1 provides that the court may in its discretion, for good cause, appoint an adult to execute “* * * any process other than writs of execution, replevin or attachment of property or person,” as well as that “the person appointed shall have the same power and duty to execute such process as a sheriff.” Sub-paragraph e says that “any person served with process pursuant to this Rule shall be required to comply with such process to the same extent as if it had been served by the sheriff.” The plaintiff below procured an order of court appointing Robert E. Ammons, a member of the Bar of Maryland and an insurance investigator, to execute the service of summons on Walker. Twelve days later, on January 30, 1963, Ammons found Walker at the parking lot in Baltimore where he worked and left with him the summons, declaration, interrogatories and request for admission of facts. Pursuant to Rule 116 c Ammons filed with the clerk of court his affidavit, setting out that he had served Walker at a specified place and time, in a manner described.

Ammons had no other connection with the case or interest in it except that he knew one of the claimant’s lawyers through their mutual activities in church work. Walker immediately called his insurance agency to tell them of the papers left with him, although he says he thought they were unimportant records of the accident. When he called, he was told the agency was very busy but to bring the papers in to them when he next came in to make a payment. When he went some two weeks later to make a payment he did not bring the papers because “they had slipped his mind” but he “talked with the manager about it” (he did not disclose the manager’s reply or reaction).

Walker did not plead to the suit and judgment by default ²⁹⁵ was taken against him on February 20, 1963. Inquisition was held March 26, and the damages were set at $10,000. On April 29, the claimant’s lawyers, anticipating, they say, that an attack would be made by the insurance company on the validity of service on Walker, sent one Bass, a law student and insurance investigator, to check with Walker. He took a statement which Walker signed, saying in part that suit papers had been served on him on January 30, 1963, that he had not yet turned them over to the insurance company but that he had been told to do so by “the man who served them on me,” and that he did on January 30, the day they were left with him, call the insurance company and “tell them about the suit papers.” Walker mailed the papers to his insurance agent Daly on April 29, the day he gave the statement, and the next day the Southern General Insurance Company filed a motion to strike the judgment, alleging that it was the real party in interest, that the claimant knew she did not have a meritorious claim and knew that judgment could not have been obtained “unless it was obtained surreptitiously and while settlement negotiations were pending,” and that the judgment was obtained “by means of fraud, mistake and irregularity.” On May 9 Walker filed a motion to strike, alleging obtention of the judgment by “fraud, mistake and irregularity,” in that he “was not apprised, in any substantial form, that service was intended to be made upon him but, on the contrary, * * * was informed and apprised that the documents handed to him were unimportant papers concerning the accident * * Judge Carter held a full hearing at which he went into the merits of the tort claim and allowed counsel for Walker and his insurer wide latitude (including almost complete invasion of the file over appellant’s lawyers’ objection that it was their “work product”) in their effort to show a conspiracy on the part of claimant’s two lawyers, and Ammons and Bass, deliberately and studiedly to obtain a judgment against Walker without allowing him or his insurer to know of it.

At the conclusion of the hearing, Judge Carter announced that he had found no Maryland decision in point, but that based on out of state cases he believed the law to be that service is not valid when “a delivery of process is so masked by words or conduct ²⁹⁶ of the process server that the defendant is not apprised of the fact that service is intended to be made upon him.” He said that to him Walker was a reliable witness and that he accepted his versions “as to the events of January 30, 1963, and those of April 29, 1963,” and found, “as a fact not only that Walker was not apprised of the fact that service was intended to be made upon him but also that he was misled into believing that the declaration, summons, etc. constituted some unimportant record of the accident in question.” Judge Carter concluded therefore that there had been mistake in obtention of the judgment because valid service had never been acquired, and struck the judgment as void. We think the findings and conclusions of the court and its action in striking the judgment cannot stand. It is firmly established that a court will not set aside an enrolled judgment unless the proof of the existence of one or more of the grounds permitting such action is clear and convincing. Harvey v. Slacum, 181 Md. 206 .

It is equally well established that a proper official return of service is presumed to be true and accurate until the presumption is overcome by proof and the mere denial of personal service by him who was summoned will not avail to defeat the sworn return of the official process server. Little v. Miller, 220 Md. 309, 315 , and cases cited. Chief Judge Bond for the Court in Parker v. Berryman, 174 Md. 356, 359 , adopted the language of Windwart v. Allen, 13 Md. 196 , 200: “ ‘Intendments will be made in support of the acts of ministerial officers, where they appear by the return of process to have discharged their duty, and the onus probandü rests on the party impeaching such acts.’ ” Sarlouis v. Firemen's Ins. Co., 45 Md. 241, 244 , held that the affirmative testimony of the official process server acting in the regular routine of duty without a motive to misrepresent must be preferred to the negative evidence of one claiming not to have been served “from public policy as well as upon the rules of probability.” Judge Urner, for the Court, put it in this wise, in Weisman v. Davitz, 174 Md. 447, 451 , after first restating the rules just referred to: “If the defendant’s denial is not supported by corrobative testimony or circumstances, or the evidence offered by him is refuted by opposing proof, the attempted impeachment of the official return must fail.” ²⁹⁷ It is true that there may be successful impeachment of service seemingly valid on the record but, in all the Maryland cases in which there has been, the circumstances have ranged from virtual demonstration of the lack of service (as in German v. Slade, 42 Md. 510 , in which a defendant swore he had not been served and the deputy sheriff swore he had served the other defendants but not that one and had entered the notation of service by mistake) to clear and convincing evidence that there had not been service, in the form of corroboration of the defendant’s claim that there had not been, by independent disinterested witnesses, plus lack of refutation, when challenged, by the sheriff or others.

See, for example, Master v. Master, 223 Md. 618 (the defendant wife swore she was working in Washington when she was said to have been summoned and was corroborated by her employer’s payroll records and check) ; Little v. Miller, supra (the defendant, a seaman, swore he was on a voyage when he was said to have been served and official Coast Guard records supported him) ; Harvey v. Slacum, supra (husband and wife swore they had never been summoned and the deputy sheriff did not know whether he had served the father or his son, could not recognize the husband in the courtroom and could not remember the wife or say that he had summoned her) ; Plummer v. Rosenthal, 178 Md. 149 (sworn denial by Earl Rosenthal of any service; sheriff identified the brother of the defendant, Irvin, as the man he had summoned) ; Piedmont-Mt. Airy Guano Co. v. Merritt, 154 Md. 226 (father said to have been served at home of his son; sworn denial of service plus corroboration that the father never at any time was at son’s home at the hour mentioned by the sheriff; summons for both father and son were found by son’s wife on his bureau and sheriff was highly uncertain in attempted identification); Pattison v. Hughes, 80 Md. 559 (four witnesses swore sheriff was completely drunk when he called and said only “I want you to come to Ellicott City”; sheriff did not deny it). In the case before us, Ammons, who for the purpose of serving the appellee and the attendant consequences, had the status of a sheriff, testified clearly and explicitly under oath that he had inquired of people in Walker’s former neighborhood as to his wrhereabouts and had found out about the parking lot at which ²⁹⁸ he worked, that he walked into the office of the parking lot and asked for Walker, who identified himself, that he asked his date of birth and the number of his driver’s license and found they agreed with those in his notes, that he then told Walker the sheriff ordinarily would have come but he, Ammons, had been appointed by the Superior Court to serve him in the place of the sheriff with the summons, the declaration, the interrogatories and the admission of facts, and opened an envelope in which they were and spread the papers out in front of Walker, with the summons on top, and explained they were suit papers, named the plaintiff’s lawyer — who was known to Walker — and said that is what he claims and this is how much he is claiming, told Walker he would have to answer the questions asked and his insurance company would provide a lawyer to help him answer, and that he must turn the papers over to his insurance company right away. Ammons says the reason he explained what the declaration said and claimed with unusual care was because Walker gave the impression that he thought he was free of any liability for the accident because he had been acquitted in Traffic Court.

He said to Ammons: “I thought that thing was all over. Are they still kicking it around?” Ammons said Walker telephoned his insurance agent while he was there and reported he had been told he would have to call back later to talk to the man he wanted. Ammons left the papers with Walker. Walker corroborated Ammons in a number of respects.

He is literate, having gone through the fifth grade at school and through an additional four “levels” in the Army. He was at his desk in the parking lot office, working on records of oil and gasoline when Ammons walked in. His insurance company adjuster noted in his records that Walker was of average intelligence and was worried about the accident. Ammons told Walker he had been looking all over the place for him, that he had come to see him in the place of the sheriff of Baltimore to serve him with some papers about his accident.

Walker then said: “And he